A coalition of farm,
building and water user groups this week again pressed their
case in federal appellate court that genetically akin
naturally born and hatchery produced salmon are equals under
the Endangered Species Act.
The Pacific Legal Foundation on
Wednesday filed notice that it will appeal an Aug. 14 U.S.
District Court decision that upheld 16 West Coast salmon
listings. The PLF represents the Alsea Valley Alliance and
The appeal is the second ESA listings-related lawsuit
forwarded to the U.S. Court of Appeals for the Ninth Circuit
within two months. The PLF filed notice Aug. 2 that it would
appeal U.S. District Court Judge John C. Coughenour's June 13
order declaring illegal NOAA Fisheries' "hatchery listing
policy" and its downlisting of the Upper Columbia steelhead
from endangered to threatened. Earlier this month the federal
government likewise asked that the Seattle-based judge's
opinion be overturned by the appellate court.
Coughenour's order discounts the positive impact of
hatchery fish on salmon populations and forces regulators to
ignore hatchery fish when determining whether salmon should be
listed as "endangered," according to the PLF. It says the
hatchery policy was flawed, because it did not treat hatchery
The latest appeal targets an order by Michael R. Hogan
which upheld listing decisions made in June 2005 by the NOAA
Fisheries Service. The Alsea Valley Alliance says the federal
agency's reviews, employing the hatchery policy, did not give
genetically similar hatchery fish the same status as naturally
produced salmon in determining the overall health of the
Resulting protective regulations also failed to provide
equity for hatchery fish included in salmon "evolutionarily
significant units", the group said. PLF filings also said the
new listings improperly included salmon populations in the
same ESA groupings that do not interbreed.
The Eugene, Ore.,-based judge said the listing
determinations' strategy for evaluating hatchery stocks' role
within the ESUs was valid
"Congress did not specify how NMFS should conduct a species
review," Hogan's order Aug. 14 said. The federal agency
included in listings hatchery populations that are closely
matched genetically with fish that were born in the wild, and
judged the risks and benefits represented by hatchery-born
stocks that might stray onto the spawning grounds.
"While reviews commenced with the BRT's evaluation of
natural populations within historic ESUs, the listed ESUs
include hatchery stocks," Hogan said, referring to the
biological review team assembled for the status reviews.
"NMFS made its listing determinations after assessing the
effects of artificial propagation programs and existing
protection efforts," according to the order. "Plaintiffs do
not contend that NMFS improperly excluded any hatchery
populations from a listed ESU, as occurred in Alsea I." In a
2001 ruling Hogan determined that NOAA had improperly left
hatchery fish out of that stock's actual ESA listing after
designating them as part of the Oregon Coast coho salmon ESU.
"In the absence of a challenge to NMFS's scientific
conclusions, NMFS's determined population segments for listing
under a permissible construction of the ESA's definition of
'species,'" Hogan said.
The Alsea Valley Alliance feels that Judge Hogan got it
right the first time,
"The purpose (of the ESA) is to conserve the species, not
just one part of it," said PLF attorney Sonya Jones. "That's
what the language says."
She says Hogan made a legal distinction in the 2001 opinion
-- that the ESA says a stock cannot be subdivided.
"In Alsea II, he seems to be making a scientific
distinction" that strays from that intent, Jones said.
"We think that's irrelevant, and not correct" under the
specific ESA language, she said.
The 16 stocks range from the Canadian border, through the
Columbia 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.