Columbia 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 produced stocks.

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 Hogan.

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 Tuesday.

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 attorneys.

"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 attorneys say.

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