Federal appeals court
edicts issued Monday preserve decisions to list 16 West Coast
salmon stocks, and Upper Columbia steelhead, under the
Endangered Species Act.
NOAA Fisheries Service methods for
defining individual species that include both hatchery and
naturally produced stocks, and for evaluating whether those
species need ESA protections, are valid under the law,
according to two decisions released by U.S. Court of Appeals
for the Ninth Circuit Judges Diarmuid F. O'Scannlain, Pamela
Ann Rymer and Andrew J Kleinfeld.
A March 16 Ninth Circuit opinion reversed decisions by U.S.
District Court Judge John C. Coughenour that said NOAA's
"hatchery listing policy" violated the ESA, as did a decision
to downlist Upper Columbia River steelhead stocks from
endangered to threatened. The latter decision was based in
part on the hatchery listing policy.
The Ninth Circuit did affirm Coughenour's decision to deny
a request that NOAA be required to consider hatchery and
natural-origin fish separately during ESA status
determinations. The request came from a coalition of fishing
and conservation groups.
In a "memorandum" issued Monday regarding a separate
appeal, the same Ninth Circuit panel affirmed an August 2007
ruling by Oregon-based District Court Judge Michael R. Hogan
that said NOAA Fisheries satisfied ESA requirements in making
its 2005 West Coast salmon listing determinations.
The 16 stocks range from the Canadian border, through the
Columbia River basin, to the central California coast. They
include the Snake River spring/summer and fall chinook stocks,
the Upper Columbia spring-run chinook, the Lower Columbia
chinook and Upper Willamette chinook, Snake River sockeye,
Lower Columbia chum and Lower Columbia coho.
Both district court decisions were appealed to the U.S.
Court of Appeals for the Ninth Circuit. Oral arguments were
heard by the appellate panel during a joint hearing in
September in Seattle.
"We must decide whether the National Marine Fisheries
Service may distinguish between natural and hatchery-spawned
salmon and steelhead when determining the level of protection
the fish should be afforded under the Endangered Species Act,"
the March 16 opinion said of the appellate panel's task in
deciding the appeals.
It concluded that that NMFS (NOAA Fisheries Service) can
indeed make that distinction.
"This is a huge decision, mainly because it lifts our
enormous anxieties for all of our listings" NOAA spokesman
Brian Gorman said of the Ninth Circuit's validation of the
policy, which describes how hatchery fish should be regarding
in making ESA determinations. Of the 26 West Coast salmon and
steelhead listings assessed during an intensive 2003-2005
effort, 25 involved the application of the new hatchery
listings policy guidelines.
Earthjustice's Jan Hasselman said the decisions represent
"the end of this 10-year campaign… to eliminate Endangered
Species Act protections for salmon" by lumping wild and
hatchery stocks together and thus "conflating" population
numbers. Earthjustice represented the fishing and conservation
groups in the lawsuits.
The wild vs. hatchery issue was triggered by NOAA's 1998
listing of Oregon coast coho salmon, and a lawsuit brought by
the Alsea Valley Alliance challenging the decision. In
September 2001 Hogan ruled that the ESA does not allow the
agency to include both hatchery and wild fish in a species –
an evolutionarily significant unit – and then list only the
Instead of appealing that decision, NOAA Fisheries Service
announced it would revise its 1993 hatchery listing policy and
reconsider its listing decisions for salmon and steelhead ESUs
coast-wide. The agency announced its decisions regarding 16
West Coast salmon stocks in June 2006 and followed with
decisions on 10 steelhead stocks six months later.
The new policy, issued in 2005, calls for the assessment of
the extinction risk of the entire species, "taking into
account on a case-by-case basis both the negative and positive
impact of hatchery programs on the naturally spawning fish."
The new hatchery listing policy, and the updated ESA West
Coast salmon and steelhead list, drew at least five legal
challenges. This week's appellate court decisions drew a mixed
"It's never fun to be reversed. I thought Judge
Coughenour's decision was well grounded in the law," Hasselman
On the other hand, a saving grace is that the Ninth Circuit
"did make it abundantly clear that the hatchery policy didn't
have to weaken protections for wild salmon," Hasselman said.
A principle tenet of the ESA is that status determinations
focus on naturally self-sustaining populations "and they were
reading the policy as doing that," Hasselman said of the Ninth
The opinion said the panel was "persuaded that the Hatchery
Listing Policy does not flout the statutory goal of preserving
natural populations" as Earthjustice had argued.
"Rather, it mandates a more complex evaluation process that
considers both the positive and the negative effects of
hatchery fish on the viability of natural populations.
"We are also convinced that the Hatchery Listing Policy's
method of assessing the status of an entire ESU, and NMFS's
corresponding downlisting of the Upper Columbia River
steelhead, were decisions based upon the best scientific
evidence available" as the ESA requires, the opinion says.
"On remand, the district court should grant NMFS's motion
for summary judgment" by dismissing the lawsuit, the Ninth
Circuit Court opinion said. Once that's done, the Upper
Columbia steelhead would again be designated a threatened
species, rather than an endangered one.
The decisions likely spell the end to long-running legal
debate over the treatment of hatchery stocks in evaluations of
whether salmon deserve ESA protections. One camp has argued
that wild and hatchery stocks must be judged separately;
another says genetically akin hatchery and naturally born
salmon must all be counted in judging their ESA status.
"I think it is fairly safe to say that this is not an issue
the Supreme Court would be interested in," said the Pacific
Legal Foundation's Damian Schiff. PLF represented the Alsea
Valley Alliance in Hogan's Court and a number of farm,
building and water user groups before Coughenour. They argued
for the all-inclusive approach, which they said would show
none of the stocks is truly imperiled.
A second potential course of action would be to ask the
Ninth Circuit for a rehearing before a larger panel of judges.
Schiff said he had yet to consult with his clients regarding a
rehearing request but felt it is also unlikely.
A panel of judges with a relatively conservative track
record on environmental issues ruled that NOAA Fisheries'
scientific expertise must be given deference. One of the
judges was appointed to the appeals court by Republican
President Ronald Reagan, the other two by George H.W. Bush.
The panel's decisions "naturally bodes ill" for success
before a broader Ninth Circuit panel, Schiff said.
Lawsuits filed in the U.S. District Court's Eastern
California District that challenged five steelhead listings
were also turned aside, on Oct. 31. The lawsuits used the same
strategy, arguing that natural-origin and hatchery fish with
the same genetic background must be viewed as one-in-the-same
in ESA determinations.
That court ruled that "Plaintiffs' attempts to discredit
NMFS's listing decision by identifying shortcomings in the
agency's rationale fail under the totality of the
circumstances, in a case rife with complex and uncertain
scientific information, where judicial deference is owed to
the agency's expert knowledge of the subject matter."
Schiff said PLF's clients chose not to pursue an appeal of
For more information see “Ninth Circuit Hears Arguments On
NOAA's Wild/ Hatchery ESA Listings Policy” (CBB, Oct. 24,