A federal judge whose
2001 decision prompted a re-evaluation of 27 West Coast salmon
and steelhead stocks' protected status on Tuesday ruled that
16 salmon listings satisfy Endangered Species Act
The 16 listing decisions made in June 2005 by
the NOAA Fisheries Service, following ESA status reviews, were
challenged in U.S. District Court by the Alsea Valley
The Oregon-based organization, represented by the Pacific
Legal Foundation, said the reviews did not give genetically
similar hatchery fish the same status as naturally produced
salmon in determining the overall health of the stock. The
group claimed the resulting protective regulations do not
exhibit equity for hatchery fish.
PLF filings in Judge Michael R. Hogan's court also said the
new listings improperly included salmon populations in the
same ESA groupings that do not interbreed.
"Congress did not specify how NMFS should conduct a species
review," Hogan's Aug. 14 ruling said of the Alsea challenge to
NOAA's method for assessing hatchery salmon's role.
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
"While reviews commenced with the BRT's evaluation of
natural populations within historic ESUs, the listed ESUs
include hatchery stocks," Hogan said, referencing 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."
The Alsea Valley Alliance was successful in an earlier
challenge of the Oregon Coast coho salmon listing. Hogan in
2001 ruled that NOAA had defined the coho population -- the
"evolutionarily significant unit" -- to include both hatchery
and natural born populations, then improperly included only
the wild fish in the actual ESA listing.
The federal government chose not to appeal the decision.
Instead it created a new "hatchery listing policy" and
employed it in determining the status of salmon and steelhead
stocks. The 2005 salmon determinations include fish from 133
hatchery programs. Only one, the Central Valley Spring-run
Chinook ESU -- does not include hatchery stocks.
In challenging the salmon listings, the PLF has said that
the overall hatchery-wild abundance should be the determining
"Federal law says that all the salmon should be counted,
and all the salmon should count," according to PLF attorney
Sonya Jones. "Regulators do not have license to pick and
choose which salmon they''ll pay attention to and which ones
they'll ignore. For this reason, the case is not over. We're
appealing, so that the federal officials will be required to
do their job under the ESA."
"Not only does the law say that regulators can't do a
low-ball estimate of salmon, science and common sense argue
against leaving hatchery salmon out of the equation," Jones
said. "Hatchery salmon are real salmon. They're biologically
the same as stream-spawned fish. Most stream-spawned salmon
are descended from hatchery fish."
"The standard is getting lower and lower and lower," Jones
The Hogan order was welcomed by NOAA Fisheries.
"It certainly removes a lot of uncertainty on more than a
dozen salmon species" for which recovery plans are being
developed, said agency spokesman Brian Gorman.
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.
A coalition of fishing and conservation groups applauded
the Hogan decision.
"Hatcheries never were meant to be a replacement for
self-sustaining populations of salmon in healthy streams,"
said Earthjustice attorney Jan Hasselman. Earthjustice
represented the fishing and conservation groups, which joined
the proceedings as a defendant-intervener.
The groups say that science has revealed that hatchery and
wild salmon are different in important ways and that many
hatcheries have helped push wild salmon closer to extinction.
The hatchery policy says that "hatchery fish will be
included in assessing an ESU's status in the context of their
contributions to conserving natural self-sustaining
Their presence can be positive" 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 policy says.
"The ESA does not prohibit this approach," Hogan said.
He also supported the new listings' protective rules, which
applied "take" prohibitions to "natural and hatchery fish with
an intact adipose fin, but not to listed hatchery fish that
have had their adipose fin removed."
"In the absence of a challenge to NMFS's scientific
conclusions, the ESA does not require that protective
regulations treat natural populations and hatchery stocks
equally," Hogan wrote.
The order also said NOAA's ESU groupings met ESA standards.
The PLF has argued that some ESUs include far-flung
populations that do not interbreed as the law requires.
"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.
"Plaintiffs' position that actual interbreeding is required
would prohibit the agencies from listing the United States
population of an animal that is abundant elsewhere in the
world," Hogan said. "Congress intended otherwise."
"Substantively, defendants argue that the words
'interbreeds when mature' reflect Congress's intent that
members of the same species, subspecies or distinct population
segment be capable of interbreeding when mature.
"Defendants further argue that NMFS accounts for
interbreeding between populations within ESUs by requiring
that ESUs be reproductively isolated from other conspecific
populations," Hogan said.
NOAA's interpretation of what constitutes an ESU is "within
permissible limits under the ESA," Hogan concluded.
The PLF is girding for a renewed fight.
"This case has important real-world consequences for the
people and the economy of the Northwest," said Jones. "When
regulators put their hands over their eyes and act as if a
large segment of the salmon population doesn't exist, they're
more likely to impose harsh regulations on property owners and
businesses, to 'protect' a species because they've
deliberately underestimated its population."
The PLF is a public interest legal organization dedicated
to property rights, limited government, and a "balanced
approach to environmental protection."
A copy of the Hogan decision can be found at:
With the decision, NOAA Fisheries can claim one victory in
an increasingly complex fight.
In June, a Seattle-based federal judge declared NOAA's new
hatchery policy illegal and ordered the restoration of
"endangered" status for Upper Columbia steelhead stocks. The
NOAA re-evaluation had resulted in the steelhead's downlisting
-- from endangered to threatened.
Judge John C. Coughenour said the hatchery policy mandates
that "status determinations be based on the entire ESU…,"
which includes hatchery fish.
"The status determination for the Upper Columbia River
steelhead ESU provides a clear example of how an evaluation of
the entire ESU distracts from the risks faced by natural
populations and departs from the central purpose of the ESA,"
The PLF has since appealed Coughenour's ruling in the U.S.
Court of Appeals for the Ninth Circuit.
NOAA spokesman Brian Gorman said the agency has until Aug.
28 to file an appeal of the decision if it so desires.
"Findings and Recommendations" issued last month by U.S.
District Court Magistrate Janice M. Stewart take to task the
2006 NOAA decision to leave the Oregon Coast coho off the
list. She said NOAA's withdrawal of that listing proposal
hinged on an Oregon assessment of the coho's ability to
persevere that is "based on assumptions plagued by
uncertainty, lack of data and potential bias…."
The July 13 findings said the NOAA decision is arbitrary
and capricious under the ESA because it fails to consider the
best available science. She recommended that NOAA "be ordered
to issue a new final listing rule consistent with the ESA
within 60 days of the court's decision." Any objections to
Stewart's findings are to be filed by Monday.
Ultimately a district court judge will accept Stewart's
findings, modify them or reject them.
In Eastern California's U.S. District Court, a judicial
decision is due on PLF challenge of five steelhead listings.
That argument is based on the same premise presented in the
Alsea case, that hatchery and naturally born fish should be
treated as equals.