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PLF Vows Court Fight to Enforce Landmark Hatchery Salmon Ruling
By: Russ Brooks
Pacific Legal Foundation wasted no time in putting the Bush Administration’s new hatchery salmon policy under the legal microscope. Issued on May 28, the proposed policy would leave in place 26 Endangered Species Act listings for Pacific salmon and steelhead populations and add a new one even though the salmon are not at risk of extinction.
The National Marine Fisheries Service’s (NOAA Fisheries) newly announced policy flies in the face of PLF’s landmark 2001 court victory in Alsea Valley Alliance v. Evans. In that case, federal fish managers were ordered to count salmon that spawn in the wild together with their hatchery-raised equivalents when deciding whether to declare a species threatened or endangered. Although NOAA Fisheries agreed over two and a half years ago to develop a new policy to comply with that ruling, the proposed policy attempts to skirt the court order by counting hatchery salmon, but still maintaining the bogus listings for salmon and steelhead in Alaska, Washington, Oregon, California, and Idaho. The new policy is a purely political effort to accommodate both sides of the issue.
For years, we have watched so-called “salmon protection groups” work in the court of public opinion and in courts of law to advance the fiction that “wild” salmon and hatchery salmon are altogether different fish and, therefore, hatchery salmon shouldn’t be counted when determining the health of the species. This is pure junk science—no biological difference exists between fish spawned naturally and those fertilized at a hatchery.
Respected marine biologists have repeatedly confirmed that hatchery salmon and “wild” salmon are the same fish. The fact these salmon have cohabitated and spawned together for 100 years is only natural—they are all salmon. They interbreed, fight for food and survive together, migrate to the ocean together, and return to the same streams together, to spawn together. The good news is, there are plenty of healthy salmon. For example, fish hatcheries release millions of salmon and steelhead each year into the Columbia River Basin.
Nevertheless, environmental activist groups have adulterated science to create the false impression that federal regulation is needed to give salmon preference over people—and they have repeated the lie often enough to cause politicians and regulators to doubt the truth. It’s been an effective strategy for a long time—manipulate the fish count artificially to keep salmon on the endangered or threatened species list, and therefore, maintain regulatory control over people’s property, lives, and livelihoods. Manufactured pessimism perpetuated by prevarications is their only way to counteract the telling fact that salmon in record numbers are coming home to spawn.
Enforcing PLF’s Alsea Ruling
Pacific Legal Foundation declared war on this cruel charade by filing its landmark Alsea lawsuit in 1999. Last February, PLF successfully defeated environmental activists’ appeal of the decision at the Ninth Circuit Court of Appeals.
This huge victory for sound science and a commonsense interpretation of the Endangered Species Act has far-reaching implications, as federal officials have been using the same illegal counting methods for the salmon in the Klamath Basin, as well as for chinook, chub, and sockeye throughout the West. “We need to look at both wild and hatchery fish before deciding whether to list a species for protection,” admitted Bob Lohn, Northwest regional administrator for the National Marine Fisheries Service. “There was an inescapable reasoning to Judge Hogan’s ruling; we thought his reasoning was accurate.”
Indeed, Judge Hogan’s ruling in Alsea was accurate because it followed the letter of the law which requires that listings under the Endangered Species Act be based on sound science. That is, the only questions are whether salmon are endangered or threatened, and whether existing salmon ecosystems can adequately support salmon. That millions of salmon are thriving in these ecosystems means that the listings for salmon cannot be legally justified.
It is regrettable that the Bush Administration has decided to put politics before solid science, the rule of law, and the economic and personal hardship many people in the West are suffering as a result of these illegal listings. We will continue working with federal fish managers during the time in which the proposed policy is undergoing public review and comment, and PLF hopes they will recognize their serious mistake. If they don’t, they can expect to be right back in court.
Russell C. Brooks is Managing Attorney of PLF’s Northwest Center in Bellevue, Washington.
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