A two-pronged attack has
been mounted seeking the overturn of a June 13 court order
that declared NOAA Fisheries Service's "hatchery listing
policy" contrary to the Endangered Species Act and restored
"endangered" species protections for wild Upper Columbia River
The Pacific Legal Foundation on Aug. 2
filed notice of its intent to appeal the decision. In its
opening brief filed Monday with the U.S. Court of Appeals for
the Ninth Circuit, the PLF asks that U.S. District Court Judge
John C. Coughenour's June 13 order be overturned and that NOAA
be ordered to rewrite the hatchery policy.
The judge's order said the Endangered Species Act was
designed to protect "naturally self-sustaining populations in
their naturally-occurring habitat."
"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.
"We want it thrown out but for entirely different reasons"
than the parties that first challenged the hatchery policy,
PLF attorney Sonya Jones this week. The Building Industry
Association of Washington, Washington State Farm Bureau,
Coalition for Idaho Water and Idaho Water Users Association,
which PLF represents, say the policy improperly distinguishes
between naturally spawned and hatchery born salmon and
steelhead of the same species.
"The ESA does not allow a government agency to artificially
exclude species members from a population when those members
meet NMFS’s population criteria," according PLF's opening
brief. "Under the ESA’s clear terms, NMFS must treat equally,
without distinction, all members of a species it includes in a
"Likewise, under the ESA, NMFS may not artificially
subdivide a population into two separate populations, as if
they were different species, when all the members of the
species meet NMFS’s population criteria," according to the
Aug. 10 filing.
Trout Unlimited and other fishing and conservation groups
challenged the policy and its application to Upper Columbia
steelhead, saying the hatchery fish should not be included in
stocks being considered for ESA protection. NOAA in 2005 used
the newly developed policy in evaluating the status of the
Upper Columbia steelhead stock. It determined that the
steelhead should be downlisted, from endangered to threatened.
The federal government included hatchery stocks in nearly
all of the 25 West Coast salmon and steelhead "evolutionarily
significant units" it evaluated following the legal
invalidation of its Oregon Coast coho listing, and a 1993
"interim" hatchery policy NOAA used in making that
The re-evaluation of existing West Coast listings, which
concluded in 2005 and 2006, included in the listings hatchery
stocks that were not more than moderately divergent
genetically from naturally produced fish and that were not
judged a risk to the wild fish. Hatchery fish, identified by
clipped fins, within the ESUs were not afforded the same
protections from harvest or "take" as naturally born salmon
and steelhead. The determinations focused on the status of
wild populations and evaluated how they might be affected,
positively or negatively, by their hatchery kin.
"The Final HLP is the product of a thorough deliberative
process in which NMFS addressed the difficult question of how
to account for the contributions that well-run hatchery
programs may have in conserving self-sustaining natural
populations, while also recognizing the threats that they may
pose," according to a Justice Department brief filed with the
district court early this year.
Federal attorneys will again defend the policy and listing
determinations. The Justice Department filed on Sept. 7 its
notice of intent to appeal Coughenour's order.
The Ninth Circuit had established a briefing schedule to
debate the merits of the PLF appeal. The fishing and
conservation groups, represented by Earthjustice, are
scheduled to reply to the PLF's opening brief by Oct. 11. But
the schedule for the three-cornered debate will likely be
changed with the federal government now added to the mix,
The PLF says hatchery and naturally produced salmon that
share the same watersheds and genes should be counted as one
when assessing population status.
"In sum, NMFS fails to employ the proper standard for
determining whether salmon populations warrant listing as
threatened or endangered species under the ESA and, if listed,
the appropriate recovery role for hatchery salmon," according
to the PLF brief. "The ESA requires that NMFS treat equally
all salmon it includes in a salmon population, without regard
to where or how individual members spawn or reside."