Brief Challenges Feds on Interbreeding Issue in Salmon Listings 

Columbia Basin Bulletin

June 29, 2007   

In judging whether salmon stock require protections, the federal government fails to satisfy an Endangered Species Act tenet when it excludes individual populations that "interbreed when mature," while including others that don't, according to a legal challenge to 16 West Coast listings.

NOAA Fisheries has neither proven that individual populations within the listings -- 16 "evolutionarily significant units" -- actually interbreed, nor accounted for straying that results in interbreeding between ESUs, according to a supplementary brief filed Tuesday for the Alsea Valley Alliance.

The brief questions NOAA's ESU policy -- which defines which fish will be included in ESA determinations of stock status. The policy was created specifically for salmon -- the agency's interpretation of the ESA's listing unit, a "designation population segment."

The brief filed for Alsea by the Pacific Legal Foundation comes, potentially, as a final exchange in a lawsuit calling for a vacation of the 16 listing determinations issued on June 28, 2005 , by the federal agency. Alsea and other groups pressing the lawsuit say that hatchery and naturally spawned salmon "swimming side-by-side in the same stream" were not treated equally in NOAA's listing decisions as the law requires.

The agency also errs in claiming that the ESA's "interbreed when mature" language means "capable of interbreeding when mature," the PLF brief says. That ESA-required sharing of important genetic material in a species grouping is to too poorly defined in the ESU policy.

"… the only logical interpretation of 'interbreeds when mature' to a DPS (or ESU) is the requirement that members of the population actually interbreed with reasonable regularity," according to Alsea. Neither the lawsuit's administrative record or a brief filed by the U.S. Justice Department June 15 proves that happens, the groups says.

The parties to the lawsuit have been briefing and U.S. District Court Judge Michael A. Hogan heard oral arguments on April 17.

Last month the judge asked NOAA to "file supplemental materials indicating whether, and if so, how, the NMFS determined that populations of Pacific salmon within evolutionarily significant units (ESUs) listed under the Endangered Species Act (ESA) and challenged in this case interbreed when mature."

The U.S. Justice Department and Trout Unlimited filed briefs with the court defending the inclusion of wild populations in the same ESU listing that are to various degrees separated geographically, and in some cases in run timing. Trout Unlimited is a defendant-intervenor in the lawsuit.

The federal filing says that "legislative history suggests that the term 'interbreeds when mature' requires that members of the same species, subspecies or distinct population segments be capable of interbreeding when mature, not that they physically interbreed with all other members."

"Moreover, the record reveals that the subpopulations that make up the challenged ESUs do interbreed, at least on the long-term timescales relevant to ESU determinations," said Trout Unlimited. "Plaintiff Alsea Valley Alliance’s ('Alsea’s') belief that in order for an ESU to be valid every population within an ESU needs to interbreed with every other population in that ESU, in each generation, is contrary to both congressional intent and the best available science."

The case remains under advisement.

"He (Judge Hogan) hasn't given any indication" of when he might issue an opinion or order, according to PLF attorney Sonya Jones.

She called the interbreeding issue important, though secondary.

"We really don't want it settled on that issue alone," though that would be a step forward, Jones said. The PLF, and groups it represents, claims that NOAA's listing determinations have followed the wrong genetic path, discounting the worth of hatchery produced fish that should be counted when assessing the status of salmon stocks.

Hogan in a 2001 decision said NOAA violated the ESA by including hatchery and naturally produced Oregon Coast coho salmon in the same ESU but excluding the hatchery fish from the actual ESA listing.

That decision prompted a rethinking of the agency's West Coast salmon and steelhead listings, and the issuance of new determinations in 2005 with many hatchery stocks included in the listings, and a new policy outlining hatchery stocks' role in listing determinatins.

The determinations were ultimately made on the basis of the wild stocks' status. Alsea says that making that distinction is illegal under the ESA.  

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