Property rights group appeals U.S. judge's salmon count ruling

08/03/2007

By DONNA GORDON BLANKINSHIP  

Associated Press

A property rights group filed an appeal Thursday to a federal judge's ruling that hatchery-raised salmon should not be counted along with wild fish when determining if a run needs Endangered Species Act protection.

When U.S. District Judge John Coughenour ruled on June 13 concerning Upper Columbia River steelhead, he opened the door for this appeal to the 9th U.S. Circuit Court of Appeals because his ruling conflicted with one by federal Judge Michael Hogan in Oregon in 2001.

Coughenour ruled that only wild fish should be counted and Hogan said hatchery fish must be included in the count. Pacific Legal Foundation is basing its appeal of Trout Unlimited v. Lohn on that conflict.

"Under the Endangered Species Act ... you can't pick and choose which members of those populations you are going to count," said Sonya Jones, a lawyer with Pacific Legal Foundation's Northwest office in Bellevue .

Mark Taylor, president of the Washington council of Trout Unlimited, was not surprised by the appeal, but he was confident his side would prevail.

"I think Judge Coughenour's decision will be upheld and it should be. All the science is on our side," Taylor added.

"We want to make sure we have fish for future generations," Taylor said.

Many scientists are concerned that counting hatchery-raised fish in determining the health of a species can mask declines in natural fish stocks, though some argue that hatchery fish can bolster wild populations. Hatchery-raised fish do not have the same survival rates that wild fish do and they could genetically alter the species.

Hogan ruled that the government could not lump hatchery and wild fish into the same group, or "evolutionarily significant unit," for purposes of the Endangered Species Act while listing only the wild fish as protected.

Instead of appealing the decision or designating hatchery and wild fish as separate groups under the law, the National Marine Fisheries Service — over the objections of government scientists — decided in 2005 to change its rules to match Hogan's ruling. The fisheries service started counting hatchery fish when determining whether salmon runs are endangered or threatened.

Jones said her group disagreed with environmentalists who have argued there are behavior differences between the hatchery and wild steelhead.

"Behavior differences do not count under the Endangered Species Act. The offspring between a hatchery fish and a wild fish is considered wild," she said.

Jones said Pacific Legal Foundation wants to be sure that the Endangered Species Act is only used for conservation of species that need help.

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