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Groups take hatchery/wild listing issue to appeals court

 September 28, 2007 Columbia Basin Fish and Wildlife News
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 other groups.

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 fish equally.

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 stock.

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.

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