Attorneys for farm,
builder and water user groups on Thursday appealed a court
decision that declared the federal government's Endangered
Species Act listing of Upper Columbia River steelhead, and its
policy for determining hatchery stocks' status in listing
"It's no secret what our argument is. If
you're going to count the salmon, you have to count all of the
salmon," said Pacific Legal Foundation attorney Sonya Jones.
The PLF, representing a variety of interest groups, has for a
decade said that the NOAA Fisheries Service must include all
salmon that are genetically akin, whether from hatcheries or
spawned naturally, when assessing whether a stock needs ESA
PLF this week filed with the Western Washington's U.S.
District Court a notice of appeal of a June 13 decision by
Judge John C. Coughenour that forced NOAA to restore the
"endangered" status of the Upper Columbia steelhead because
the listing determination was based on a legally flawed
hatchery listing policy. The agency had downgraded the
steelhead's listing to "threatened."
The hatchery/wild debate now moves to the U.S. Court of
Appeals for the Ninth Circuit. The deadline for filing for an
appeal of Coughenour's decision is Aug. 10. NOAA Fisheries is
defendant in the lawsuit filed by fishing and conservation
"Though it scarcely seems open to debate, the Court
concludes that in evaluating any policy or listing
determination under the ESA, its polestar must be the
viability of naturally self-sustaining populations in their
naturally-occurring habitat," Coughenour wrote in that June
Coughenour said the hatchery policy mandates that "status
determinations be based on the entire ESU…," which includes
hatchery fish. A re-evaluation of existing West Coast listings
used a newly developed policy in making listing determinations
announced in 2005 and 2006. Included in the listing
"evolutionarily significant units" were hatchery stocks that
were not more than moderately divergent genetically from
naturally produced fish and that were not judged a risk to the
"The status determination for the Upper Columbia River
steelhead ESU provides a clear example of how an evaluation of
the entire ESU distracts from the risks faced by natural
populations and departs from the central purpose of the ESA,"
The Building Industry Association of Washington, Coalition
for Idaho Water, Idaho Water Users Association and Washington
State Farm Bureau represented by the PLF said Coughenour's
decision misses the point.
The ruling discounts the positive impact of hatchery fish
on salmon populations and forces regulators to ignore hatchery
fish when determining whether salmon should be listed as
"endangered," according to PLF attorneys. They said during
district court briefing that the hatchery policy was flawed,
because it did not treat hatchery fish equally.
"Arbitrary and illegal listings under the Endangered
Species Act result in onerous and unnecessary federal
regulation of private property," said Sonya Jones, an attorney
with PLF's Northwest Center, in Bellevue, Washington.
"In PLF's landmark 2001 victory in Alsea Valley Alliance v.
Evans, Oregon Federal Judge Michael Hogan got it right. He
followed the plain language of the ESA and ruled that hatchery
salmon shouldn't be ignored when determining whether salmon
populations are 'endangered,'" Jones said. "Hogan's logical
decision paved the way for some return to balance in species
protection throughout the Pacific Northwest."
The Hogan opinion prompted NOAA's re-evaluation of its
hatchery policy, and of all 27 West Coast salmon and steelhead
listings. New determinations for salmon were announced in June
2005 and for steelhead stocks early the next year.
Hogan said that NMFS had in 1998 violated ESA provisions by
excluding hatchery fish from its Oregon Coast coho listing
after including them in its ESU for the species. Hogan said
that once defined, a portion of the ESU can not be left out of
the listing. He declared the listing invalid.
NOAA chose not to appeal the decision, opting instead to
redraft the policy. The new stock assessments resulted in the
Oregon Coast coho being left off the list and the Upper
Columbia steelhead stock being downlisted.
The Coughenour ruling stands in direct opposition to the
Alsea decision by barring federal officials from considering
hatchery spawned fish along with stream-spawned stocks, the
"If regulators ignore hatchery salmon, it's much more
likely that salmon will be declared 'endangered' and
landowners, farmers, and businesses will face unnecessary
regulation under the ESA," said Jones.
"And let's be realistic: Hatchery salmon are real salmon,
biologically the same as stream-spawned fish," said Jones. "In
fact, most if not all stream-spawned salmon have parents or
grandparents that were spawned in hatcheries."
"We welcome a clear reading by the Ninth Circuit Court of
Appeals in this matter and relief for overburdened
landowners," Jones said.