The National Marine Fisheries Service (NMFS) filed a motion for summary judgment against the Building Industry of Washington’s (BIAW) Common Sense Salmon Recovery (CSSR) coalition lawsuit on July 11. The lawsuit challenges the federal agency’s listing of several species of Pacific Northwest salmon as threatened or endangered under the Endangered Species Act (ESA). If granted, NMFS’s motion would dismiss the lawsuit, which also contends that NMFS violated the law by mismanaging salmon stocks to the point of ESA listing.

However, most experts agree that it’s not very likely the motion will be granted for a number of reasons. The toughest hurdle NMFS’s motion has to overcome is a court rule prohibiting summary judgment unless all discovery has been completed.

CSSR has been attempting for well over a year to compel NMFS to produce all the materials requested in discovery. “As a result of NMFS’ failure to provide all of the requested discovery, the judge will most likely strike, or at least postpone, the agency’s motion for summary judgment until NMFS provides all the requested discovery,” said BIAW General Counsel Greg Overstreet.

Since BIAW filed the lawsuit, NMFS has consistently stonewalled efforts to obtain important documents relating to the listing of northwest salmon under the ESA. As a result, BIAW and CSSR were forced to file a Freedom of Information Act (FOIA) request in May of last year for access to the key public documents. NMFS has continued to procrastinate in turning over many of the most important of the requested public documents, despite a court order from a federal judge ordering it to do so immediately or face violation of the FOIA.

One example of NMFS’ recalcitrance in handing over discovery material involves the infamous “missing” genetics files. When CSSR attempted to obtain public records regarding the ESA listing indexed by NMFS under the heading “genetics” (a key issue in the hatchery/wild fish are same “species” aspect of the lawsuit), NMFS claimed those files were “missing.”

The requested public documents are considered necessary as part of the lawsuit against NMFS. “Without these key documents, proper preparation of our scientific experts and evidence, let alone our legal arguments, is impossible,” said Overstreet.

CSSR filed a motion in the FOIA case for summary judgment to establish that NMFS had not produced all the requested public records and that CSSR was entitled to attorney’s fees. CSSR’s motions to obtain the information are expected to be heard shortly.

As CSSR filed motions to force NMFS to provide discovery materials, NMFS filed its motion for summary judgment. However NMFS’ motion fails to address key parts of the lawsuit, claiming, in essence, that every aspect of its listing of salmon (e.g., not controlling harvest, not counting hatchery fish, etc.) under the ESA is “rational.”

“NMFS’s motion can be summed up by simply noting that it does not contain any lethal arguments that cause undue concern to BIAW or CSSR,” said Overstreet.