Appeal Takes Hatchery/Wild Listing Debate to Ninth Circuit 

Columbia Basin Bulletin

August 3, 2007 

Attorneys for farm, builder and water user groups on Thursday appealed a court decision that declared the federal government's Endangered Species Act listing of Upper Columbia River steelhead, and its policy for determining hatchery stocks' status in listing decisions, illegal.

"It's no secret what our argument is. If you're going to count the salmon, you have to count all of the salmon," said Pacific Legal Foundation attorney Sonya Jones. The PLF, representing a variety of interest groups, has for a decade said that the NOAA Fisheries Service must include all salmon that are genetically akin, whether from hatcheries or spawned naturally, when assessing whether a stock needs ESA protections.

PLF this week filed with the Western Washington 's U.S. District Court a notice of appeal of a June 13 decision by Judge John C. Coughenour that forced NOAA to restore the "endangered" status of the Upper Columbia steelhead because the listing determination was based on a legally flawed hatchery listing policy. The agency had downgraded the steelhead's listing to "threatened."

The hatchery/wild debate now moves to the U.S. Court of Appeals for the Ninth Circuit. The deadline for filing for an appeal of Coughenour's decision is Aug. 10. NOAA Fisheries is defendant in the lawsuit filed by fishing and conservation groups.

"Though it scarcely seems open to debate, the Court concludes that in evaluating any policy or listing determination under the ESA, its polestar must be the viability of naturally self-sustaining populations in their naturally-occurring habitat," Coughenour wrote in that June opinion.

Coughenour said the hatchery policy mandates that "status determinations be based on the entire ESU…," which includes hatchery fish. A re-evaluation of existing West Coast listings used a newly developed policy in making listing determinations announced in 2005 and 2006. Included in the listing "evolutionarily significant units" were hatchery stocks that were not more than moderately divergent genetically from naturally produced fish and that were not judged a risk to the wild fish.

"The status determination for the Upper Columbia River steelhead ESU provides a clear example of how an evaluation of the entire ESU distracts from the risks faced by natural populations and departs from the central purpose of the ESA," Coughenour said.

The Building Industry Association of Washington, Coalition for Idaho Water, Idaho Water Users Association and Washington State Farm Bureau represented by the PLF said Coughenour's decision misses the point.

The ruling discounts the positive impact of hatchery fish on salmon populations and forces regulators to ignore hatchery fish when determining whether salmon should be listed as "endangered," according to PLF attorneys. They said during district court briefing that the hatchery policy was flawed, because it did not treat hatchery fish equally.

"Arbitrary and illegal listings under the Endangered Species Act result in onerous and unnecessary federal regulation of private property," said Sonya Jones, an attorney with PLF's Northwest Center , in Bellevue , Washington .

"In PLF's landmark 2001 victory in Alsea Valley Alliance v. Evans , Oregon Federal Judge Michael Hogan got it right. He followed the plain language of the ESA and ruled that hatchery salmon shouldn't be ignored when determining whether salmon populations are 'endangered,'" Jones said. "Hogan's logical decision paved the way for some return to balance in species protection throughout the Pacific Northwest ."

The Hogan opinion prompted NOAA's re-evaluation of its hatchery policy, and of all 27 West Coast salmon and steelhead listings. New determinations for salmon were announced in June 2005 and for steelhead stocks early the next year.

Hogan said that NMFS had in 1998 violated ESA provisions by excluding hatchery fish from its Oregon Coast coho listing after including them in its ESU for the species. Hogan said that once defined, a portion of the ESU can not be left out of the listing. He declared the listing invalid.

NOAA chose not to appeal the decision, opting instead to redraft the policy. The new stock assessments resulted in the Oregon Coast coho being left off the list and the Upper Columbia steelhead stock being downlisted.

The Coughenour ruling stands in direct opposition to the Alsea decision by barring federal officials from considering hatchery spawned fish along with stream-spawned stocks, the PLF says.

"If regulators ignore hatchery salmon, it's much more likely that salmon will be declared 'endangered' and landowners, farmers, and businesses will face unnecessary regulation under the ESA," said Jones.

"And let's be realistic: Hatchery salmon are real salmon, biologically the same as stream-spawned fish," said Jones. "In fact, most if not all stream-spawned salmon have parents or grandparents that were spawned in hatcheries."

"We welcome a clear reading by the Ninth Circuit Court of Appeals in this matter and relief for overburdened landowners," Jones said.

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