Fishing and conservation
interests continue to press their case that wild-born and
hatchery fish, despite genetic alikeness, should be separated
when the federal government evaluates whether a stock deserves
protection under the Endangered Species Act.
Fisheries Service in a 2006 decision to downlist Upper
Columbia steelhead, from endangered to threatened,
"contravened Congress's direction by 'counting'
first-generation hatchery fish that pose a threat to the
viability of wild steelhead, and diminishing ESA protection
for this DPS," according to a Jan. 11 Earthjustice filing with
the U.S. Court of Appeals for the Ninth Circuit. A "designated
population segment" is a group, usually, of steelhead
populations that NOAA determines makes up a single species.
The appellate court has been asked to overturn a district
court ruling that said NOAA Fisheries erred in making the
decision and also called illegal the "hatchery listing policy"
on which it was based. The Upper Columbia steelhead DPS
includes six hatchery stocks.
In a June 13, 2007, order, U.S. District Court Judge John
C. Coughenour "concluded that the HLP is deficient for
requiring that risk assessments, or status determinations, be
made on the basis of the entire ESU, as opposed to the risks
facing natural populations."
The plaintiffs, represented by Earthjustice, in the case
heard by Coughenour had also asked the judge to force NOAA to
consider a petition that natural and hatchery stocks be
evaluated as separate DPSs or "evolutionarily significant
units." Trout Unlimited and other fishing and conservation
groups involved in the lawsuit had earlier petitioned NOAA for
separate listing determinations for naturally produced and
hatchery born salmon and steelhead stocks but were denied.
The judge also declined, saying the desire for distinction
is "resolved by the Court's conclusion that status
determinations must be made with the health and viability of
natural populations as the benchmark.
The federal government and the Building Industry
Association of Washington both appealed Coughenour's decision
to the Ninth Circuit. The BIAW intervened in the lawsuit to
defend the steelhead reclassification while at the same time
also challenging the listing policy. The federal appeal asks
that the Ninth Circuit overturn the district court ruling and
uphold both the hatchery policy and the Upper Columbia
The BIAW and other groups aligned with it say hatchery and
naturally produced salmon that share the same watersheds and
genes should be judged as equals and counted as one species
when assessing population status. They are represented by the
Pacific Legal Foundation.
Federal attorneys say NOAA Fisheries has walked a fine
line, considering the status of a species that includes
genetically similar hatchery fish while holding to the ESA
goal of "conserving naturally sustaining populations." The
federal appeal said Coughenour did not dispute NOAA's
delineation of the Upper Columbia steelhead DPS or species.
The review of the status of the species followed HLP
guidelines for assessing the impact of the hatchery fish, both
positive and negative, on the wild fish, the federal appeal
"In applying the Policy, NMFS did not simply count hatchery
fish and find sufficient abundance to avoid listing the Upper
Columbia River steelhead as endangered," the federal appeal
says. "Rather, the Hatchery Listing Policy and listing
determination appropriately consider whether specific hatchery
programs contribute to, or undermine, the viability of the
species based on all four viability criteria -- abundance,
productivity, distribution, and diversity."
Trout Unlimited's Jan. 11 brief says the strategy misses
"NMFS allowed the number of artificially propagated
steelhead to mask both the declines in the natural populations
and the lack of suitable habitat to support self-sustaining
populations," according to the recent filing. "NMFS placed the
fate of this steelhead population in the hands of hatchery
operators rather than insist on quality habitat that can
support the population.
"In doing so, NMFS defied the ESA's mandate to prevent
extinction and conserve species in their natural ecosystems….
"The sole purpose of an ESA status review is to assess a
species' viability and determine whether it warrants ESA
protection to return to self-sustaining status. Since it is
beyond dispute that a salmon population that depends on
hatcheries to artificially prop up its abundance is far from
viable, it is nonsensical to 'count' hatchery fish in status
reviews of salmon viability," according to the Trout Unlimited
The BIAW's claim that hatchery and naturally born steelhead
must be treated equally in ESA status reviews is also flawed,
Trout Unlimited says.
"BIAW appears to mean that NMFS must deliberately ignore
the fact that some salmon in a DPS are born naturally and
others owe their existence solely to the intervention of
humans, which gives rise to differences in their fitness and
survivability," according to the brief filed by Earthjustice.
"It would be contrary to both the best science and the
ESA's goal of preserving natural self-sustaining populations
for NMFS to give equal weight to wild and hatchery-origin
salmon in conducting salmon viability assessments. Moreover,
such an approach would lead to delistings of salmon
populations that require perpetual infusions of hatchery
outplants, which NMFS has appropriately determined would be at
odds with the ESA scheme and a recipe for extinction."
The Justice Department and PLF will now have a chance to
respond to Trout Unlimited's arguments. Then, potentially,
oral arguments could be held before a Ninth Circuit judicial
panel rules on the appeals.
The PLF is pressing its case for equal treatment in another
lawsuit before the Ninth Circuit. The Alsea Valley Alliance,
BIAW and other groups represented by the PLF appealed an
August 2007 ruling by District Court Judge Michael R. Hogan
that upheld listing decisions for 16 West Coast salmon stocks
made in June 2005 by the NOAA Fisheries Service.
In its opening brief, also filed Jan. 11, the PLF says the
ESA requires that "NMFS must treat equally, without
distinction, all members of a species it includes in a species
The brief said that NMFS' listing determinations "only
considered hatchery members of the population ancillary to the
naturally spawning members of the same population."
The coalition of farm, building and water user groups asks
the Ninth Circuit to set aside Hogan's ruling and order NMFS
to issue new listing determinations based on the "plain
language of the ESA."
""What NMFS must do, according to the plain language of the
ESA, is determine whether any of the subpopulations within a
given ESU can assist in sustaining the entire ESU since that
is the only listable entity, not merely the hatchery-born or
naturally spawning members of that entity," the Alsea Valley
"Once all subpopulations are given equal consideration, as
required by the district court, then it is unlikely that any
of the subject ESUs would be subject to listing as threatened
or endangered, or merit protective regulations, under the ESA."