Salmon decision leaves protections

John Driscoll
Eureka Times Standard

August 16, 2007

A federal judge has ruled that hatchery salmon should be treated apart from wild salmon when regional populations are considered for protection under the Endangered Species Act.

U.S. District Court Judge Michael Hogan ruled Tuesday in favor of the National Marine Fisheries Service and fishing and environmental groups defending the government's listing of 16 West Coast salmon populations.

Farm and development interests had challenged the policy of distinguishing between naturally raised fish and hatchery reared salmon, claiming they are not separable. They also argued that different runs of salmon that do not interbreed with protected salmon should not be included for protection under the act.

”Plaintiffs' position that actual interbreeding is required would prohibit the agencies from listing the United States population of an animal that is abundant elsewhere in the world,” Hogan wrote. “Congress intended otherwise.”

The Pacific Legal Foundation won a more limited case in 2001, when Hogan ruled a population of wild Oregon salmon shouldn't be protected without also protecting hatchery fish. The protection of that population segment was removed, then both wild and hatchery fish were both listed later.

The National Marine Fisheries Service drafted a new policy on hatchery fish two years ago and went on to conduct a review of all 16 listed salmon populations, keeping all of those populations under protection.

Fisheries service spokesman Brian Gorman said Tuesday's decision will allow the agency to move forward on salmon restoration plans.

”Obviously we're very pleased,” Gorman said. “Certainly a cloud of uncertainty has been lifted from our recovery efforts.”

But Gorman said it's unlikely that the court would have the last word on the matter.

In fact, Pacific Legal Foundation attorney Sonya Jones said the organization would appeal Hogan's decision, which she claimed allows the agency to make an end run around Hogan's 2001 ruling.

”If you're going to count the salmon, you've got to count all the salmon,” Jones said.

Otherwise, she said, “the flood gates” for regulating private property will be thrown open.

Among the salmon populations that are listed are Klamath River coho salmon. Glen Spain with the Pacific Coast Federation of Fishermens' Association, an intervenor in the case, said the decision underscores the need for reforms in the Klamath River basin .

”Coho are just the indicator species for a sick river and the cure is clearly the removal of the Klamath dams and changing the water balance in the river for fish to survive,” Spain said.

Arguments about the inclusion of hatchery fish in assessments of salmon populations' health are still being heard by the courts. Opening briefs to the U.S. 9th Circuit Court of Appeals are due Sept. 11, in which arguments focus on the protection of 10 populations of steelhead trout. An appeal of a Washington U.S. District Court ruling is also being waged by the Pacific Legal Foundation.

Northcoast Environmental Center Executive Director Greg King said there are important biological reasons not to include hatchery fish when considering protection of a species. The genetic diversity of wild fish is what allows them to ride out diseases and climatic conditions, while hatchery fish have provided an argument for not protecting habitat.

”It's important that habitat is protected and maintaining wild stocks will give us an idea of the health of the habitat,” King said.

John Driscoll covers natural resources/industry. He can be reached at 441-0504 or jdriscoll@times-standard.com.