hatchery vs. wild debate continues on several
fronts with legal arguments concluded in at
least two lawsuits that challenge the NOAA
Fisheries Service's new method for listing
salmon and steelhead under the deserve
Endangered Species Act.
Justice Department response filed Feb. 2 in
one of the challenges says that NOAA's new
Hatchery Listing Policy "is based on a
reasonable interpretation of the ESA" and
deserves deference under that law.
policy, which defines how hatchery-produced
fish will be considered when NOAA makes its
ESA listing determinations, is also
scientifically defensible, according to
federal briefs filed in at least six lawsuits
in California, Oregon and Washington.
16, 2005, NOAA released to the public the new
hatchery listing policy and announced that it
would reaffirm previous listing decisions for
15 West Coast salmon stocks and add the Lower
Columbia River coho to the ESA list.
months later the agency reaffirmed nine West
Coast steelhead listings and said it would
downgrade one listing, for Upper Columbia
steelhead, from endangered to threatened.
the West Coast listings included hatchery
produced stocks in the same "evolutionarily
significant unit" as wild fish, a departure
from most previous listings that included only
naturally produced stocks.
policy allows the inclusion of hatchery stocks
with "no more than moderate genetic
divergence" from wild stocks.
result, NMFS included in the Upper Columbia
steelhead DPS hatcheries that produce large
numbers of fish that pose a threat to
long-term steelhead survival in various ways,
such as by competing for scarce habitat,"
according to a Trout Unlimited brief filed
Evolutionary Significant Unit (ESU) is NOAA's
definition of "designated population segment."
The ESA term includes "any distinct population
segment of any species of vertebrate fish or
wildlife which interbreeds when mature."
complaints want the policy, and/or listing
determinations that applied the policy, to be
arguments are being waged before Judge John C.
Coughenour in Seattle's U.S. District Court.
Briefing concluded Jan. 19 in one and last
Friday in the other, with federal attorneys
filing their defense of the policy and
Trout Unlimited v D. Robert Lohn, with the
Building Industry Association of Washington
(BIAW) as plaintiff intervenor. Lohn is
regional administrator for NOAA's Northwest
lawsuit plaintiffs challenge the legality of
the hatchery listing policy. Trout Unlimited
and aligned fishing and conservation groups
say hatchery fish should not be considered at
all in listing determinations.
contrast, the BIAW says the policy still
judges hatchery fish unfairly, that all salmon
returning to an area should be counted in
determining whether a particular stock is
other, Trout Unlimited challenges the policy
and its application in the downlisting of
Upper Columbia steelhead.
court has also been asked to overturn NOAA's
denial of the groups' petition asking NOAA to
evaluate "wild-only" and "hatchery-only" ESUs
in making listing determinations.
says the policy is illegal because the ESA
doesn't allow NOAA to consider hatchery and
naturally spawning fish differently when
assessing the status of a population, or make
Section 4(d) regulations that allow for take
of hatchery fish that NMFS determines to be
"surplus to the conservation and recovery
needs" of the population.
"does not specify how NMFS must consider
hatchery fish when making a listing
determination" and previous court rulings have
held that NOAA's interpretations of ambiguous
statutory language should be given deference,
as the expert federal agency, according to the
Feb. 2 federal response.
hatchery policy is an expansion NMFS' earlier
ESU Policy that "sets out the agency's
interpretation of the ESA's term 'distinct
population segment' in the context of listing
determinations for West Coast salmon. There
can be no dispute that the ESA's term
'distinct population segment' is ambiguous….,"
the federal response says.
Unlimited has argued that the language is not
ambiguous, that the law requires NOAA to
protect species' ability to sustain themselves
in the wild, leaving hatchery production as a
potential short-term tool but not a means to
the ESU policy a salmon or steelhead
population is considered an ESU if it is
substantially reproductively isolated from
other population units of the same species;
and represents an important component in the
evolutionary legacy of the species.
would be inconsistent with the ESU Policy to
exclude hatchery populations from an ESU,
where, as in this case, the naturally spawning
and hatchery salmon populations in a given
stream are not substantially reproductively
isolated from each other and where both
populations contain common genetic resources
that represent the evolutionary legacy of the
species," federal attorneys say.
federal response cited a technical memorandum
published by a group of NMFS scientists that
reviewed the "best available scientific
information to assess the effects of hatchery
programs on the viability and extinction risk
of the DPS as a whole."
respect to the Upper Columbia steelhead ESU,
it concluded that 'the six artificial
propagation programs in the ESU collectively
provide beneficial effects to the ESU's
abundance and spatial structure, but neutral
or uncertain effects to the ESU's productivity
and diversity.' In light of these findings, it
was entirely reasonable for NMFS to conclude
that fish from hatchery programs within the
ESU 'collectively mitigate the immediacy of
extinction risk for the Upper Columbia River
steelhead DPS in the short term, but that the
contribution of these programs in the
foreseeable future is uncertain'" the federal
argues that the ESA doesn't allow NOAA to
assess the status of the wild populations and
look only at the effect hatchery fish have on
that status. It cites a 2001 decision by U.S.
District Court Judge Michel R. Hogan that said
NOAA could not designate both naturally and
hatchery spawned Oregon Coast coho in the same
ESU and then list only the wild fish. That
decision prompted NOAA's review of the
existing listings, and development of the new
2 federal response said, however, that
"Contrary to BIAW's arguments, NMFS cannot
make listing determinations based on the
fiction that hatchery and naturally spawning
fish will always have identical effects on the
BIAW's arguments, natural and hatchery fish
are not biologically equivalent, nor do they
contribute to species viability in the same
way. Numerous scientific panels have concluded
that artificial propagation can potentially
benefit or decrease the viability of salmonid
populations," according to federal attorneys.