Briefings Complete in Ninth Circuit Wild vs. Hatchery Listing Cases 

Columbia Basin Bulletin

April 4, 2008  

Did Congress intend that hatchery-reared salmon and steelhead be treated -- during consideration of a stock's need for federal protections -- as equals to kin spawned in Columbia River basin rivers and streams?

That's a question a U.S. Court of Appeals for the Ninth Circuit panel (or panels) will ponder now that legal briefing has been completed in two challenges of NOAA Fisheries Service Endangered Species Act listing decisions, and of the policy the agency uses to guide those decisions.

The appellate court could call for oral arguments in the future before issuing opinions on the issues debated by attorneys for the Alsea Valley Alliance, Trout Unlimited and the U.S. Department of Justice. It could also, potentially, merge the two appeals and render a single opinion.

"They both raise very similar issues," said Pacific Legal Foundation attorney Damien Schiff. The Alsea Valley Alliance, Building Industry Association of Washington and other groups represented by the PLF appealed an August 2007 ruling by U.S. District Court Judge Michael R. Hogan that upheld listing decisions for 16 West Coast salmon stocks made in June 2005 by the NOAA Fisheries Service.

The PLF has consistently argued before the district and appeals court that the ESA requires that "NMFS must treat equally, without distinction, all members of a species it includes in a species population" in deciding the health of a salmon or steelhead stock. It says a "hatchery listing policy" developed by NOAA, and listing "take" prohibitions, illegally judge genetically related hatchery and wild-born fish differently.

"… the Service's ultimate decision whether to list must be based upon an assessment of the ESU's viability as a whole," according to a closing brief filed March 19 by PLF.

"This conclusion is mandated by the ESA's text," the brief says. That "whole" is defined by NOAA as an evolutionarily significant unit." The 16 listed salmon ESUs include both hatchery and naturally born fish but the hatchery listing policy decides what role the different hatchery stocks might play in the conservation of wild stocks. Unless that role is positive, the listings do not for the most part prohibit the harvest or take of hatchery fish included in the ESUs. The take of wild fish is limited.

"The Alliance contends that the challenged ESUs are invalid because the HLP impermissibly prejudices the listing analysis in favor of a component of the listable entity," the PLF brief says.

A federal brief filed March 7 says that "Nowhere does the statue compel NMFS to treat hatchery and naturally spawning fish the same for all purposes.

"Indeed, it would violate the clear statutory mandate to use the best available science in making listing decisions were NMFS to ignore the significant differences between hatchery and naturally spawning fish when assessing the risks to a species survival," the federal brief says. "NMFS's Hatchery listing policy is grounded on a reasonable interpretation of the statue."

The PLF reply says the Alliance interpretation of the ESA would not force NOAA to ignore those differences. It disputes, however, listing decisions made "systematically, with reference to the viability only of the naturally spawning component of the ESU."

Trout Unlimited and other fishing and conservation groups that intervened in the lawsuit argue that a clear distinction should be made.

"Indeed, if NMFS conducted listing assessments as Alsea proposes, i.e., by purposefully blinding itself to the many distinctions between hatchery and wild salmon, the agency would violate the ESA’s clear statutory mandate to use the best available science in making listing determinations.

"Rather than a nuanced analysis based on the best available science, as called for by law, Alsea wants to reduce ESA listing determinations to a simple numbers game, evidently in the hope that such an approach will lead to widespread delisting of salmon in the Pacific Northwest and California," according to a Feb. 7 brief filed by Earthjustice for Trout Unlimited. "The core problem with Alsea’s argument is that no such requirement exists."

The appellate court has also been asked to overturn a district court ruling that said NOAA Fisheries erred in 2006 in deciding to downlist Upper Columbia steelhead from endangered to threatened and also called illegal the hatchery listing policy on which it was based. The Upper Columbia steelhead DPS includes six hatchery stocks.

In a June 13, 2007 , order, U.S. District Court Judge John C. Coughenour "concluded that the HLP is deficient for requiring that risk assessments, or status determinations, be made on the basis of the entire ESU, as opposed to the risks facing natural populations."

In their appeals of that decision, Trout Unlimited and the BIAW "take polar-opposite positions," according to a closing brief filed March 21 in the Ninth Circuit. TU argues that only naturally spawned fish should be considered for listing; the BIAW, again, insists that related hatchery and wild stocks should be considered a single species in ESA listing analysis. Both sides reject the hatchery policy's legal validity.

The recent federal brief says it's not that simple.

"The relationship between natural fish and hatchery fish is highly complex and no universal conclusions regarding the relative risks and benefits of artificial propagation can validly be made.

"Consistent with the science ands statute, the 2005 Hatchery Listing Policy instructs NMFS staff to assess the extinction risk of the entire species, taking into account on a case-by-case basis both the negative and positive impact of hatchery programs on the naturally spawning fish," the federal brief says.

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