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October 27, 2006 cbbulletin

Legal punches and counterpunches have begun in no fewer than five lawsuits challenging NOAA Fisheries' methods for determining whether West Coast salmon and steelhead stocks should be protected under the Endangered Species Act.

The lawsuits have come to life over the past month in federal courts in California, Oregon and Washington with requests that NOAA's 2005 listing determinations and/or the agency's new hatchery listing policy be struck down. Most are scheduled for court rulings early in the New Year.

Briefing began Oct. 20 in a lawsuit that pits a coalition of fishing and conservation groups against builder, farm and water user groups, and against NOAA Fisheries. Both are asking U.S. District Court Judge John C. Coughenour to declare NOAA's "hatchery listing policy" illegal, but for different reasons.

The policy outlines how NOAA will consider the presence of hatchery fish when evaluating the population status of stocks that are being considered for ESA listing. It defines criteria by which hatchery fish might be vital to the recovery of listed stocks, and thus are included in the overall evaluation of those stocks' status.

The fishing and conservation groups, led by Trout Unlimited, say hatchery stocks should not be considered at all in listing determinations. Represented by Earthjustice, they ask Coughenour to overturn NOAA's denial of a petition that requests that hatchery and wild salmon and steelhead be evaluated as separate listing units.

The Oct. 20 Earthjustice summary judgment request says that last year's NOAA decision to downlist Upper Columbia steelhead was based on a faulty hatchery policy that improperly used "numbers of hatchery fish, even though it found that those same hatchery fish pose a threat to the productivity and long-term sustainability of the wild salmon."

The ESA's mandate, according to Earthjustice is to "protect the species' ability to sustain themselves in the wild…"

The opposing view presented for the Building Industry Association of Washington and other groups cites a 2001 decision by U.S. District Court Judge Michael R. Hogan that they say forbids NOAA from splitting hatchery and "naturally spawning" into separate populations for listing purposes.

The request for summary judgment filed for the groups by the Pacific Legal Foundation says that the new hatchery policy still makes too much of a distinction. It asks Coughenour to invalidate the policy; let the Upper Columbia steelhead downlisting stand and uphold NOAA's rejection of the Trout Unlimited petition.

Hogan's "Alsea decision" said that the same species that share the same habitat and interbreed cannot be treated as separate species," according to PLF.

"As a result, NMFS could not separate hatchery and 'naturally spawned' salmon swimming side-by-side in the same stream and did not err in relying on hatchery salmon to downlist Upper Columbia River steelhead," according to the PLF.

Earthjustice's request for summary judgment said the Hogan decision was made on "narrow legal ground," because it said that NOAA improperly left hatchery stock out of the Oregon Coastal coho listing after defining it as part of that coho "evolutionarily significant unit"

"The Alsea decision does not dictate the outcome of future listings, nor does it prescribe any particular approach for NMFS to take in deciding whether hatchery and wild salmon and steelhead should be placed in the same or different listing units," the Earthjustice brief says.

Briefing in the lawsuit is scheduled to end with filings Jan. 5. Both parties have requested oral arguments to follow the briefing.

Briefing is scheduled to begin Nov. 13 in Hogan's court, where the Alsea Valley Alliance has challenged the June 28, 2005, final NOAA listing determinations for 16 salmon stocks in Oregon, Washington, Idaho and California. The administrative record in the case was filed Oct. 20. Briefing is scheduled to conclude Jan. 13.

In that lawsuit, PLF also argues that NOAA "failed, to treat equally, without distinction, all members of a salmon population that it determines constitutes a 'species' as authorized and defined b the ESA."

The PLF complaint filed for the alliance says the federal agency "illegally distinguished between hatchery salmon and naturally spawned salmon and fails to allow for the proper consideration and utilization of hatchery salmon in ESA listing determinations…."

Both barrels are pointed at the NOAA hatchery listing policy in a separate case before Coughenour also titled Trout Unlimited vs. D. Robert Lohn. Lohn is NOAA's Northwest Region administrator.

The Pacific Legal Foundation, again representing the BIAW and farm and water user groups, says the hatchery policy doesn't go far enough.

The policy "fails to properly consider and utilize hatchery salmon in ESA listing determinations and protective efforts."

"The only real issue before this Court concerning the merits of NMFS's Hatchery Policy is whether the ESA allows NMFS to treat differently members of the same species that it includes in a DPS of that species. The answer to that question is 'no,' as Congress has settled the issue," according to PLF's summary judgment request.

"Given the ESA's clear terms and Congress's intent, evaluating the scientific merits of genetic and behavioral studies is improper and unnecessary to resolve this case," according to PLF.

Again the fishing and conservation groups say that the ESA requires the fishes' status be judged by "wild" populations. They also say NOAA ignored the "best available science" in developing the policy.

According to the Earthjustice's Sept. request for summary judgment, that science says "that hatchery fish represent a threat to the survival and recovery of wild fish, and that no credible evidence demonstrated that hatcheries have enhanced the recovery of wild populations."

Both groups ask Coughenour to declare the policy illegal.

At least two other active lawsuits target the listing determinations made under the new policy. The California State Grange challenges five California steelhead listing determinations in a summary judgment request made Oct. 10. Also, the Modesto Irrigation District is challenging the Central California Valley steelhead listing.

NOAA in June of last year issued the new policy and 16 West Coast salmon determinations. The agency said the new policy is part of its response to the 2001 Hogan ruling that direct NOAA Fisheries to consider hatchery fish in ESA listings.

Under the policy, hatchery fish will be included in determining listing status in the context of their contribution to conserving natural self-sustaining populations, and will be listed if it is determined that the species as a whole warrants ESA protections, according to NOAA.

In December, the agency announced final listing decisions for 10 West Coast steelhead stocks.

In January, NOAA announced that the Oregon coast coho evolutionarily significant unit is not warranted for listing under the Endangered Species Act, and withdrew its June 2004 proposal to list the population as threatened.

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