Ninth Circuit in May to Hearby Barry Espenson
Those that insist hatchery produced salmon must be considered the peers of naturally spawned fish in Endangered Species Act listing decisions pushed their point on two fronts last week week -- urging NOAA Fisheries in both cases to count hatchery fish in determining whether a species is threatened or endangered.
On a third front, the Ninth Circuit Court of Appeals is set to hear oral arguments May 8 in the case that forced NOAA Fisheries into a re-evaluation of nearly all West Coast salmon and steelhead stocks listed under the Endangered Species Act. The so-called Alsea decision by U.S. District Court Judge Michael Hogan in September 2001 called "arbitrary and capricious" the federal agency's policy of excluding most hatchery populations from listing protection when they had already been determined a part of the same "evolutionarily significant unit" as listed naturally spawning populations. That policy is also under review by NOAA Fisheries.
Hogan's decision forced a delisting of the population in question, the Oregon coastal coho. That decision was later stayed by the appeals court.
"We are confident that, on appeal, Judge Hogan's excellent decision affirming the fact that hatchery-spawned salmon are biologically indistinguishable from so-called 'wild salmon' will stand," said Russell Brooks, the Pacific Legal Foundation's lead attorney in the case. Earthjustice, intervenors in the case, sought the stay.
Brooks said he expected a few issues to dominate oral arguments. First of all, the plaintiffs Brooks represents say that Earthjustice should not be allowed to be intervenors in the case, and thus should not be allowed to press the appeal. Earthjustice sought the status after NOAA Fisheries, the defendant in the Alsea case, decided not to pursue an appeal.
The chief debate will be over the validity of Hogan's decision.
A group of independent scientists on March 24 joined the hatchery vs. wild fray, filing an official petition for rulemaking asking that NOAA Fisheries adopt as official policy the requirement that NMFS biologists count hatchery fish when determining whether Pacific salmon and steelhead trout should be listed as endangered or threatened.
The petition was produced by a 10-member group of fisheries scientists from a broad range of institutions and agencies that have an extensive experience in research on salmonid life history, genetics, pathology, physiology and culture.
A cover letter says the "scientists bring this petition for rule making because both NOAA's present and proposed policy unlawfully differentiate between naturally spawning and hatchery salmon in making listing (and de-listing) decisions under the ESA."
The forward to the proposed hatchery policy says "the scientists believe that hatchery fish represent the same legacy as their native species, subspecies, or distinct population segments, and thus must not be excluded from their wild counterparts in listing determination under the Endangered Species Act."
The scientists propose that their policy be adopted and used to resolve the issues unearthed in Hogan's Alsea decision.
"There is no field evidence, applied studies, or demonstrated examples supporting allegations that hatchery fish do not reproduce successfully in the wild, or that they decrease the fitness of wild populations," according to the proposed policy's summary.
"Most wild Pacific salmon and steelhead have assimilated hatchery fish or their progeny within their populations for many generations. Hatchery fish originating from wild populations cannot be distinguished genetically from the wild genotypes," the document says. "It is concluded that when NMFS is making listing determination for a DPS, hatchery fish originating from the wild population should be considered the same as wild fish."
The ESA prescribes a schedule by which must response to such petitions. The agency must within 90 days either accept or reject the petition. If it accepts the petition as posing a potentially legitimate argument, NOAA Fisheries must make a determination about whether or not to adopt the proposal within one year of its receipt.
The Pacific Legal Foundation last week also attempted to push the scientists' point from another angle -- announcing that a separate analysis from the same set of scientists had been submitted to NOAA Fisheries as a critique of the draft hatchery policy produced by the agency. That draft policy was distributed in July of last year to state and tribal co-managers for comment, but was not distributed for general public comment.
According to the new scientific conclusions drawn by those scientists, the NMFS draft plan violates the mandates of the ESA in several instances and, specifically, has three major problem areas that must be addressed before development of a functional policy can occur. The scientists include Oregon State University professor emeritus James Lannan and the University of Idaho's Ernest Brannon.
The scientists say they are particularly troubled by the agency's bias against hatchery fish, the politicized definitions of "ecosystem" and "habitat," and the unlawful exaggeration of the term "unit at risk." (A copy of the full analysis can be found at www.pacificlegal.org.)
In the concluding portion of their analysis, Brannon and Lannan call on NMFS to choose scientists with experience in artificial propagation to provide "equity" within review teams evaluating hatchery issues. "Such contributions will help provide a balanced perspective on...hatchery fish," the report says.
Lannan said that the Columbia has a long, and successful, history of producing hatchery fish that are inextricably entwined genetically with naturally produced fish. He used an analogy of twins separated at birth. One was raised on sugar and junk food; the other on a nutritious food. One grew up sickly, the other robust.
Lannan continued the analogy by saying that the sickly twin had trouble reproducing. But when he did, his progeny could have all the reproductive success of the other twin's child --provided they were exposed to the same living conditions.
The same applies to fish. He said studies purporting that hatchery fish are less productive in the wild than naturally spawned fish and unable to contribute to the long-term sustainability of natural populations fail to truly answer that question. Such research needs to be conducted for at least three generations before their relative fitness can be compared.
He called the evidence from such studies "very weak."
The ESA says the purposes of the Act are to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conservef, to provide a program for the conservation of such endangered species and threatened species,.."
Lannan says the recovery effort has focused on the first purpose -- preserving fish in their native habitat -- and ignored the second mandate. An important conservation tool should be artificial propagation, he said.
"We need both and the reason we need both is to spread the risk," Lannan said. He said he feared the NOAA Fisheries bias against hatchery fish could force closures.
"It would be just plan foolish to close down programs that are working," Lannan said.
The new scientific analysis "shows that NMFS has a clear bias against hatchery fish," Brooks said. "The draft hatchery policy is filled with flaws. NMFS' bias against hatchery fish is fueled by an agenda that has everything to do with government control over people's lives and little to do with protecting a species."
"NMFS' proposed policy refuses to include all the salmon in order to keep ESA counts artificially low and the listing validated. It is time to end the environmental hysterics fueled by junk science at the heart of these salmon listings," said Brooks.
NMFS is the federal agency responsible for administering the ESA for salmon and steelhead populations.
NOAA Fisheries spokesman Brian Gorman said the analysis wouldn't in any way be incorporated into the draft.
"It's premature to submit public comment on a draft that was not intended for public comment," Gorman said. The intent is to fine-tune the document before its general release, perhaps within a few weeks.
"Our plan all along has been to hold some public meetings around the Northwest" and accept written comment" after the draft document's general release, Gorman said.
PLF's Pacific Northwest Center is located in Bellevue, Washington. For 30 years, PLF has battled in courtrooms across the country to protect people and property from the organization sees as abuse under of power resulting from the ESA.
Brannon, a fisheries genetics specialist, if a UI professor and director of its Aquaculture Research Institute. Lannan also has a doctorate in genetics.
The other scientists include D. F. Amend, who has a doctorate in fish pathology from the University of Washington and 38 years of fisheries experience M.A. Cronin, an affiliate professor at the University of Alaska in genetics; S. LaPatra, an affiliate professor in microbiology at University of Idaho; R.E. Noble, an international consultant on fisheries and aquaculture; R. G. Piper, a senior scientist for the U.S. Fish and Wildlife Service; C.E. Smith, an adjunct professor in veterinary science at Montana State University; G. A. Wedemeyer, affiliate professor in fisheries at the University of Washington; and H. Westers, president, Aquaculture Bio-engineering.
NMFS, NW region: www.nwr.noaa.gov
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