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 Hatchery salmon case heard in federal court

By WILLIAM McCALL  The Associated Press 5/2/06

PORTLAND - Property rights advocates joined commercial fishermen in a federal appeals court Monday to argue that hatchery fish should be counted along with wild fish in deciding whether to restrict the commercial ocean harvest of Klamath River fall chinook salmon.

But lawyers for the government and Indian tribes argued the law that sets the minimum number of salmon returning to the Klamath cannot be changed simply to boost the total number of fish when the wild fish run declines.

"To come in 17 years after the fact and challenge the framework upsets the entire system," said Mark Haag, an attorney for the U.S. Department of Justice.

A 1989 law set a minimum of 35,000 wild chinook returning to the Klamath River each year.

For the third straight year, NOAA Fisheries has projected those returns below that, leading to a decision to practically shut down commercial salmon fishing on 700 miles of the Oregon and California coast.

"Thirty-five thousand is a firm number, and extraordinary means must be taken to depart from that number," Haag told a three-judge panel of the 9th U.S. Circuit Court of Appeals in Portland.

But Russell Brooks, an attorney for the Pacific Legal Foundation, a property rights public interest law firm based in Sacramento, Calif., argued that NOAA Fisheries has the authority to include hatchery fish in that number.

"The only time they're treated separately is when they return," said Brooks, representing the Oregon Trollers Association.

"Doesn't that meet the definition that they're capable of being treated separately under the act?" Judge John Noonan Jr. asked in a sharp exchange with Brooks.

"If it's reasonable," Brooks said. "But that's just it, your honor - it's not a reasonable interpretation."

Brooks has been building on a 2001 federal court ruling he won that threw out Endangered Species Act protection for Oregon coastal coho based on a lack of genetic distinction between wild and hatchery fish.




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