Briefings debate how hatchery
salmon fit with ESA listings
Basin Bulletin January 26, 2007
The federal judge who in 2001 triggered a
three-year reassessment of West Coast salmon and
steelhead Endangered Species Act listings is once
again fielding arguments about how hatchery
produced fish should be accounted for in
evaluating species status.
The Alsea Valley Alliance last year challenged the
June 28, 2005, final NOAA listing determinations
for 16 salmon stocks in Oregon, Washington, Idaho
and California. Those determinations were made
following NOAA Fisheries' reworking of its
hatchery listing policy.
NOAA, which makes the determinations, then applied
the new policy during status reviews to determine
what effect hatchery salmon had on naturally
That re-evaluation was triggered by a September
2001 ruling by Oregon U.S. District Court Judge
Michael R. Hogan. He declared the 1998 listing of
Oregon Coast coho salmon illegal because NOAA had
designated both naturally and hatchery spawned
fish in the same "evolutionarily significant
unit," but only listed the wild fish.
Once that ESU determination is made, a
subpopulation (the hatchery fish) cannot be left
out of the ESA listing determination, according to
Since most of its previous listing determinations
included a similar split with only naturally
produced fish being listed, NOAA decided to
rethink both its hatchery policy and all of its
West Coast salmon and steelhead listings
The Pacific Legal Foundation, which represents
Alsea in the lawsuit against NOAA, argues that
NOAA in making the listing determinations again
"failed, to treat equally, without distinction,
all members of a salmon population that it
determines constitutes a 'species' as authorized
and defined by the ESA."
The new listings take a different approach but get
the same result -- an illegal distinction between
hatchery and naturally spawned fish, according to
the PLF attorney Russell Brooks.
"NMFS attempted to achieve simply the same end
result as that obtained in its previous unlawful
salmon listings -- salmon listings based on and in
support of the 'naturally spawned' portion of the
populations. Instead, NMFS' efforts constitute a
maze of arbitrary and capricious actions resulting
in, yet again, unlawful salmon listings,"
according to a PLF brief filed with the court
Attorneys for the federal government, a coalition
of fishing and conservation groups are amidst an
exchange of legal arguments leading up to Feb. 27
oral arguments before Judge Hogan.
The PLF says NOAA took too narrow a view of
Hogan's mandate in developing its new hatchery
policy and population status reviews, despite the
fact that the agency included numerous hatchery
populations in the newly defined ESUs.
"As a result, although NMFS listed all the members
it included in a salmon population, it based its
status review, evaluation of extinction risk, and
eventual listings on the 'naturally spawned'
portion of each population.
"Moreover, to the extent NMFS considered in its
ESA processes the hatchery salmon it included in
the populations, it did so apart from 'naturally
spawned' salmon and in a different manner using
separate criteria," the PLF brief says.
The policy calls for assessing the potential
impacts of hatchery fish, positive or negative, on
the status of the wild populations, but does not
give them equal status in the listing
determinations, Brooks said.
"At almost every step, NMFS based its ESA
processes on only a portion of the members it
included in the salmon populations," the PLF says.
It might be reasonable to make such a distinction,
Brooks said. But to be legal under the ESA, such a
distinction would have to be made in separate ESUs
and listing determinations, he said.
Federal arguments filed Jan. 12 say that the PLF
misinterprets Hogan's 2001 decision, That decision
said that NOAA "cannot list a subset of a
'distinct population segment' when making a
listing determination," according to federal
"This court did not require NMFS to treat
artificial production and natural production,
hatchery fish and natural fish, as equivalents, if
the best available science demonstrates that they
do not affect the extinction risk of a population
group in the same way," the Jan. 12 filing says.
"The purpose of ESA is to conserve ecosystems upon
which endangered species and threatened species
depend," according to the federal brief.
"Thus, it was entirely reasonable for NMFS to
instruct its staff to apply the Hatchery Listing
Policy 'in support of the conservation of
naturally-spawning salmon and the ecosystems upon
which they depend, consistent with" the ESA, the
federal brief says. And NOAA's decision as the
expert agency deserves deference, federal
The naturally spawned and hatchery fish are not
identical biologically as the PLF contends,
federal attorneys say, and the best available
science documents the differences.
"The presence of hatchery fish within the ESU can
positively affect the overall status of the ESU,
and thereby affect a listing determination, by
contributing to increasing abundance and
productivity of the natural populations in the ESU,
by improving spatial distribution, by serving as a
source population for repopulating unoccupied
habitat, and by conserving genetic resources of
depressed natural populations in the ESU.
"Conversely, a hatchery program managed without
adequate consideration of its conservation effects
can affect a listing determination by reducing
adaptive genetic diversity of the ESU, and by
reducing the reproductive fitness and productivity
of the ESU," the federal brief says.
The ESA "requires listing decision to be made on
the basis of the best available science,"
according to Earthjustice attorney Jan Hasselman.
Earthjustice represents Trout Unlimited and other
groups in the lawsuit. Both the federal government
and the fishing and conservation groups want the
PLF listings challenge dismissed from court.
"… Pacific salmon are entitled to the protections
of the ESA because they are at risk of extinction
and because the ESA is meant to protect and
recover self-sustaining species in the wild,"
according to an Earthjustice brief filed Jan. 12.
"The record demonstrates unequivocally that
hatchery and wild salmon have significant
differences that need to be evaluated through the
listing process, and that salmon cannot be
sustained biologically through hatcheries alone."
For more information about NOAA Fisheries'
Hatchery ESA Listing Policy go to http://www.nwr.noaa.gov/Salmon-Harvest-Hatcheries/Hatcheries/Hatchery-ESA-Listing-Policy.cfm