Wild and hatchery salmon not equal

By Robert McClure
P-I REPORTER

August 15, 2007

Property-rights advocates fighting government regulations to protect salmon are reeling from their second major legal defeat of the summer. The case affects both Puget Sound chinook and salmon runs across the Pacific Northwest .

Their latest setback came in a ruling by U.S. District Judge Michael Hogan -- the same judge whose 2001 ruling in favor of builders, farmers and others trying to limit federal regulation fueled a wave of litigation against the government.

Property-rights attorneys have long said Hogan's decision in the previous case meant the National Marine Fisheries Service had to count hatchery-bred fish -- not just those spawned in the wild -- toward recovery goals under the Endangered Species Act.

Because hatchery-bred fish are so plentiful, they reasoned, the legal protections extended to wild fish should be relaxed.

Not necessarily, Hogan ruled late Tuesday in Eugene , Ore. He said his previous ruling "does not require NMFS to treat natural populations and hatchery stocks equally."

"We're horribly disappointed," said Sonya Jones, the Seattle-area Pacific Legal Foundation lawyer arguing the case for property-rights advocates.

"When considering a population for (protection) such as the Puget Sound chinook," she argued, "you've got to count all the Puget Sound chinook -- not just the hatchery or naturally spawning Puget Sound chinook."

Hogan's ruling comes on the heels of a June decision by Seattle U.S. District Judge John Coughenour, who went further than Hogan, saying the Endangered Species Act actually prevents federal officials from counting hatchery-spawned steelhead alongside wild fish.

Scientific studies show that hatchery-bred fish can initially overwhelm and outcompete wild-spawned salmon. Still, the wild ones are more successful at going to the ocean and returning to reproduce, scientists say.

The Bush administration chose not to appeal Hogan's original 2001 ruling -- provoking protests by environmentalists. But Bush officials and government biologists wrote a plan to discourage hatchery practices that harm wild fish. It encourages practices that supplement wild populations without tearing them down.

That allows the hatchery-bred fish to be caught and eaten when there are enough extras, even when wild fish remain protected.

Environmentalists proclaimed a major victory.

"This whole six-year flap is over. They took their best shot and didn't even get close," said Jan Hasselman, a Seattle lawyer with the Earthjustice firm who represented environmentalists. "Let's move on to restoring fish habitat and bringing back harvestable numbers of salmon."

The legal arguments will continue, though. Jones already appealed Coughenour's ruling and said Wednesday that she would appeal Hogan's new ruling, too.

In addition, a third case affecting steelhead across the Northwest will be argued next week in California .

Brian Gorman, a spokesman for the federal fisheries service, said Hogan's new ruling shows that the property-rights advocates have oversimplified the process of protecting salmon under the Endangered Species Act.

"As many of our biologists will tell you, making a (fish-protection) decision is far more complicated than just counting the fish," Gorman said.

P-I reporter Robert McClure can be reached at 206-448-8092 or robertmcclure@seattlepi.com.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted
material  herein is distributed without profit or payment to those who have
expressed  a  prior interest in receiving this information for non-profit
research and  educational purposes only. For more information go to:http://www.law.cornell.edu/uscode/17/107.shtml

Source:  http://seattlepi.nwsource.com/local/327755_salmon16.html