State files Atlantic salmon suit King takes on federal government in endangered species listing

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Like an Atlantic salmon on the end of a fishing line, he has fought every step of the way.

Through speeches and lawsuits, Gov. Angus King has challenged federal efforts to list the fish as an endangered species. Now that the federal government has done just that, the governor is still trying to free the state from the Endangered Species Act hook.

The state filed a lawsuit Thursday in federal court in Portland that attacks the federal government’s decision to list wild Atlantic salmon in eight Maine rivers as an endangered species. The state seeks an injunction to stop the listing from taking place.

It is unusual, but not unheard of, for states to go to court to stop endangered species listings.

King insisted Thursday that the lawsuit was necessary because the federal government has not been listening to Maine’s concerns about an endangered species listing, and has not heeded the state’s efforts to protect the fish. The state is concerned that the listing decision is based on faulty science and will hurt industries, particularly aquaculture, in Washington County, where five of the rivers are.

“This is a takeover of an entire section of the state by the federal government. This is an unwarranted intrusion,” King said Thursday during his daily press time, which usually lasts about a half-hour but stretched to more than an hour as the governor spoke at length about the lawsuit.

“It is a real tragedy when we had a good plan in place and the situation was improving, showing real promise,” King said.

Federal officials said they had not seen the state’s lawsuit and could not comment, but expressed disappointment that it had been filed.

Last month, the U.S. Fish and Wildlife Service and National Marine Fisheries Service announced that they were listing the fish as an endangered species. The listing does not go into effect until Dec. 17.

From that time, the agencies have 30 months to develop a recovery plan for the species, which has dwindled in numbers. This year, only 27 Atlantic salmon were documented to have returned to the rivers.

The affected rivers are the Dennys, East Machias, Machias, Narraguagus and Pleasant in Washington County; Cove Brook, a tributary of the Penobscot, in Winterport; the Ducktrap in Waldo County; and the Sheepscot in Lincoln County.

All along, the state has contended that an Endangered Species Act listing is not warranted because Maine’s fish are not truly wild.

The state argues that millions of salmon, of several varieties, have been stocked in the rivers in the past century, so that it is ludicrous to claim that fish in the eight rivers constitute a “distinct population segment,” the federal parlance for Maine’s fish.

Based on their own studies, the federal fisheries agencies determined that the Maine fish were a “distinct population segment” and the last remaining wild Atlantic salmon in the country. As such, the fish warranted protection under the Endangered Species Act, the agencies concluded.

The state sued the agencies, seeking the genetic information upon which those conclusions were based.

Some information was given to the state, but it was not useable, the governor said. So, King went back to court to gain what he claimed was better information. That suit is pending despite the fact that the fish have already been put on the endangered species list.

“There is something wrong when we have to sue to get fish data,” King said Thursday. “These are not nuclear secrets, although the way things have been going, nuclear secrets would be easier to get.”

To try to settle the dispute, Maine’s congressional delegation secured funding earlier this year to commission the National Academy of Sciences to study the fish’s genetics. The study has yet to begin.

King had appealed to the federal government to delay a decision on listing salmon until the academy had completed that review. That request was denied because the federal agencies had signed a court order that they would make a decision by Nov. 17.

In the lawsuit filed Thursday in U.S. District Court, the state alleges that the endangered species listing is “arbitrary and capricious.” That is because in December 1997, in response to a lawsuit from conservation groups seeking to have the fish listed as endangered, the agencies said Atlantic salmon were not likely to become endangered in the “foreseeable future.” Less than two years later, the same agencies said the fish were in imminent danger of extinction and needed to be protected under the Endangered Species Act.

In addition to challenging the science used to conclude that the fish qualified for endangered species protection, the suit says not enough credence was given to state efforts to protect the fish.

To forestall a listing proposal in 1997, the services accepted the state’s conservation plan. But, two years later, the services said the plan was not doing enough to stop the species’ decline in Maine.

In announcing the listing decision, federal officials said the state plan was “excellent – as far as it went,” but that some big-ticket items were left out. The items left out included a plan for how blueberry growers can safely withdraw irrigation water from the rivers, eliminating use of European strains of salmon by fish farmers, and the use of stronger cages to prevent the escape of farmed fish.

Conservation groups that have advocated including Atlantic salmon decried the lawsuit, while members of Maine’s congressional delegation supported it.

“It’s an absolute waste of the state of Maine’s taxpayers’ money,” said David Carle of the Conservation Action Project, a New Hampshire group that sued the federal government to have salmon put on the list.

“The governor appears to be adamant about having a legacy of Atlantic salmon extinction,” Carle said, adding that no matter how the suit turned out, the fish would be the ultimate loser.

Laura Rose Day, the watershed project director for the Natural Resources Council of Maine, said the lawsuit is unproductive and diverts money that could better be used for salmon restoration.

The state’s salmon stocks need to be restored, but the state plan, not an endangered species listing, is the best way to accomplish that, Maine’s congressional delegation said in a joint statement Thursday. The group said it supported the state’s legal challenge.

An opinion poll conducted in March found that the majority of Mainers did not support such a lawsuit.

The poll, by Strategic Marketing Services of Portland, found that 59 percent of those asked opposed use of taxpayer dollars to sue the federal government to prevent the addition of salmon to the endangered species list.

NEWS reporter Emmet Meara contributed to this report.

“There is something wrong when we have to sue to get fish data. These are not nuclear secrets, although the way things have been going, nuclear secrets would be easier to get.”

– Gov. Angus King