Naturally and hatchery-spawned fish can be managed differently, the Ninth Circuit ruled today (Oregon Trollers Ass'n v. Gutierrez, 05-35970).

"[W]e see nothing in the Act to prevent the NMFS from regarding naturally spawning Klamath chinook as a 'stock' of salmon within the meaning of § 1802(37), and to prevent the agency from adopting protective measures in an FMP [Fishery Management Plan] to conserve this 'stock.' "

The court affirmed a lower court judgment that rejected the lawsuit brought by trollers and fishing groups challenging last year's severe harvest restrictions in the Pacific Coast salmon fishery.

The appellants alleged NMFS violated the Magnuson-Stevens Act when it restricted commercial fishing last year in order to give wild Klamath River fall chinook time to get back to the coast to spawn.

The judges -- John T. Noonan, A. Wallace Tashima, and William A. Fletcher -- upheld the government's conduct on the merits, including claims focusing on a 1989 regulation that established an escapement "floor" of 35,000 natural Klamath fall chinook spawners.

"Plaintiffs argue that there is no scientific basis to support an escapement goal that counts only natural spawners as relevant for conservation purposes," the court said. "However, plaintiffs frame their argument purely in terms of statutory interpretation. They did not introduce any evidence to dispute the scientific basis for the escapement goal."

The appeals court largely affirmed Magistrate Judge Thomas Coffin's September decision. But it did reject his reasoning on the statute-of-limitations violations found by the lower court judge.

The court said, "Plaintiffs filed suit within thirty days of the publication of the 2005 management measures. Under our reading of § 1855(f) as amended, the publication of these measures was an 'action' within the meaning of the statute. Therefore, plaintiffs had thirty days to attack both the action and the 1989 regulation under which the action was taken."

The court also said District Judge Michael Hogan's decision in Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001), in which he said natural and hatchery fish should be part of the same Distinct Population Segment, "is not relevant to the question before us."

The ESA and the Magnuson Act "use different terminologies. The ESA refers to 'species,' while the Magnuson Act refers to 'stock.' There is nothing in the ESA, or in the district court’s decision in Alsea, that even remotely suggests that 'species' and 'stock' have the same definition," the court said.

Links

http://caselaw.lp.findlaw.com/data2/circs/9th/0535970p.pdf  9th Cir. Opinion
http://www.eswr.com/506/trollers9-7606.htm    HTML
http://www.eswr.com/805/trollersop.pdf  District court decision
http://www.eswr.com/506   More links and recent decisions on the way