Farm Bureau to take on hatchery ruling

Saying it could affect other cases, groups want it overturned

Cookson Beecher
Capital Press

August 3, 2007

Fearful of the impact a federal judge's recent decision on hatchery fish could have on Pacific Northwest farmers, the Washington State Farm Bureau announced its intentions to file a legal challenge to the decision on Aug. 2.

This course of action on the part of the farm organization was prompted by U.S. District Judge John Coughenour's decision in June that hatchery-bred fish cannot be counted alongside natural spawning fish when determining protection under the Endangered Species Act.

The judge's ruling came in Trout Unlimited's lawsuit against the National Marine Fisheries Service over the issue of how the Upper Columbia steelhead should be listed under the Endangered Species Act.

As a result of Coughenour's decision, the steelhead's listing was raised from "threatened" to "endangered."

A "threatened" listing means a species is at risk. An "endangered" listing means it's in danger of extinction. An "endangered" listing generally requires stricter land-use regulations than would be the case in a "threatened" listing.

The Farm Bureau, along with the Idaho Water Users Association, the Coalition for Idaho Water, and the Building Industry Association of Washington, want Coughenour's decision to be reviewed by the 9th Circuit Court of Appeals.

Immediately after Coughenour's decision in June, John Stuhlmiller, director of state affairs for the Washington Farm Bureau, warned that even though the decision applied specifically to Upper Columbia steelhead, it raises questions about overall hatchery policy. For that reason, it has the potential to affect ESA fish-listing designations in Oregon , Idaho , California and other parts of Washington .

The Farm Bureau and the other groups filing the legal challenge to Coughenour's steelhead ruling say the decision undermines the importance of hatchery fish, ignores the plain language of the Endangered Species Act, and hurts landowners and farming by discounting the positive impact hatchery fish have on salmon runs.

They also point out that Coughenour's decision is at odds with a previous "landmark" ruling known as the "Alsea decision" handed down in 2001 by Judge Michael Hogan of the Oregon District Court.

In that case, Hogan ruled that the National Marine Fisheries Service acted illegally by counting only naturally spawned salmon and disregarding hatchery-bred salmon when deciding whether or not to list the Oregon Coast coho as a protected species.

Following that decision, the National Marine Fisheries Service initiated a public review of its salmon hatchery policies.

As a result of that review, the Upper Columbia steelhead was listed as "threatened" instead of "endangered," primarily because fisheries scientists credited hatchery fish for helping in the recovery of the steelhead.

Reacting to that change in listing status, Trout Unlimited, along with three environmental groups and three other fishing groups, sued the National Marine Fisheries Service.

The end result was that Coughenhour agreed with them and discounted the hatchery fish, thus putting the steelhead back into the "endangered" category.

In his decision, Coughenour described the "threatened" listing of the Upper Columbia steelhead as "unlawful" because both it and the federal fisheries service's hatchery-listing policy run contrary to the purpose of ESA, which is to promote and conserve natural self-sustaining populations.

Stuhlmiller said the first impact of Coughenour's steelhead decision is already being felt as federal fisheries officials work on a salmon recovery plan for the Upper Columbia .

"The net effect is that they are modifying the salmon recovery plan to be more stringent, even though the ruling wasn't about salmon," said Stuhlmiller. "They were working off a 'threatened' status, but now this will tip things to a more stringent structure of land-use regulations."

He said the problem is that "if you don't count hatchery fish, you may never recover some species." And he warns of the likelihood of stricter and longer listings for other fish populations.

Farmers and ranchers have a huge stake in this issue, he said, simply because so many farms and ranches are near rivers and streams.

Stuhlmiller believes that in reviewing its hatchery policies after the Hogan decision, the National Marine Fisheries Service came up with a reasonable policy.

"It's appropriate and needs to be implemented - not overridden by Judge Coughenour's decision," he said.

The National Marine Fisheries Service has not yet said if it will also appeal Coughenour's decision. However, at the time of the decision, Bob Lohn, administrator of the National Marine fisheries Service's Northwest regional office, expressed disappointment in the decision.

Cases on this same issue are pending in Oregon and California district courts.

Staff writer Cookson Beecher is based in Sedro-Woolley , Wash.

E-mail: cbeecher@capitalpress.com. 

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