http://pacificlegal.org/view_PublicationDetail.asp?iID=292&dt=December 2004&sTitle=Feds+New+Salmon+Policy+Under+Fire&iParentID=9

 

Feds New Salmon Policy Under Fire

December 2004

By:  Russ Brooks

On November 16, PLF’s Northwest Center (Bellevue, Washington) put federal fish managers on official notice that it will file a sweeping lawsuit challenging the government’s newly proposed salmon hatchery policy that illegally distinguishes between hatchery and naturally spawned fish. The misguided policy threatens small business owners, homeowners, city and rural residents who will continue to live under the threat of civil or criminal penalties for felling a tree, applying fertilizer or pesticides on their lawns, putting water to beneficial use, and a litany of other common, otherwise lawful activities associated with private property ownership.
 

Caving in to the heavy lobbying of radical environmentalists, the government’s proposed hatchery policy retains 26 bogus listings for Pacific salmon and steelhead populations, including the Oregon Coast coho, and adds a new one even though they are not at risk of extinction! This flies in the face of PLF’s landmark court victory in Alsea Valley Alliance v. Evans (2001)—one of the most groundbreaking environmental decisions of the last decade that protects private property owners from federal mismanagement of Pacific salmon and steelhead under the Endangered Species Act.
 

In the Alsea case, U.S. District Judge Michael Hogan ruled that NOAA Fisheries acted illegally by counting only naturally spawned salmon and disregarding abundant hatchery spawned salmon when deciding whether or not to list the Oregon Coast coho as a protected species. (Respected fisheries biologists have repeatedly confirmed that hatchery salmon and “wild” salmon are the same fish.) Consequently, federal fish managers acting pursuant to the ESA were ordered to count salmon whether born in the wild or in a hatchery. Last February, PLF’s Northwest Center successfully defeated environmental activists’ appeal of the decision at the Ninth Circuit Court of Appeals, and in June the court denied their petition for reconsideration.
 

In addition, PLF and many others warned NOAA Fisheries months ago that its proposed policy would result in extensive litigation, hampering the government’s ability to effectively implement the ESA and protect other listed species that truly are endangered. In July, House Resources Committee Chairman Richard Pombo sent a letter to Commerce Secretary Don Evans expressing similar concern over NOAA Fisheries’ ongoing failure to comply with court directions in managing salmon and steelhead populations throughout the western states.

 

PLF is bringing its lawsuit on behalf of a broad coalition of property owners, farmers, and business groups representing tens of thousands of citizens in Washington, Idaho, Oregon, and California—e.g., Building Industry Association of Washington, Washington Farm Bureau, Washington Realtors’ Association, Washington State Grange, Coalition for Idaho Water, Idaho Farm Bureau, Idaho Water Users’ Association, California State Grange, Central Coast Forest Association, Oregon State Grange, and Alsea Valley Alliance.
 

Federal regulators are playing a shell game. No provision of the ESA contemplates treating some members of a species differently than other members of the same population when they exist in the same river, in the same natural ecosystems, and interbreed together. Clearly, NOAA Fisheries is replacing sound science with science fiction, and PLF’s lawsuit will expose this.
 

Russell C. Brooks is Managing Attorney of PLF’s Northwest Center in Bellevue, WA.