The Associated Press
May 2, 2006
PORTLAND — Property rights advocates joined commercial fishermen in a federal appeals court Monday to argue that hatchery fish should be counted along with wild fish in deciding whether to restrict the commercial ocean harvest of Klamath River fall chinook salmon.
But lawyers for the government and Indian tribes argued
the law that sets the minimum number of salmon returning to the Klamath
cannot be changed simply to boost the total number of fish when the wild
fish run declines.
“To come in 17 years after the fact and challenge the framework upsets the
entire system,” said Mark Haag, an attorney for the U.S. Department of
Justice.
A 1989 law set a minimum of 35,000 wild chinook returning to the Klamath
River each year.
For the third straight year, NOAA Fisheries has projected those returns
below that, leading to a decision to practically shut down commercial salmon
fishing on 700 miles of the Oregon and California coast.
“Thirty-five thousand is a firm number, and extraordinary means must be
taken to depart from that number,” Haag told a three-judge panel of the
9th U.S. Circuit Court of Appeals in Portland.
But Russell Brooks, an attorney for the Pacific Legal Foundation, a property
rights public interest law firm based in Sacramento, Calif., argued that
NOAA Fisheries has the authority to include hatchery fish in that number.
“The only time they’re treated separately is when they return,” said
Brooks, representing the Oregon Trollers Association.
“Doesn’t that meet the definition that they’re capable of being
treated separately under the act?” Judge John Noonan Jr. asked in a sharp
exchange with Brooks.
“If it’s reasonable,” Brooks said. “But that’s just it, your honor
— it’s not a reasonable interpretation.”
Brooks has been building on a 2001 federal court ruling he won that threw
out Endangered Species Act protection for Oregon coastal coho based on a
lack of genetic distinction between wild and hatchery fish.