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Coalition Appeals Discounting of Hatchery Fish by Cookson Beecher Capital Press, August 24, 2007

Judge tossed out lawsuit challenging listing of 16 salmon runs on West Coast

A coalition that includes ag and forestry interests will file a legal challenge to a recent ruling that says the federal government does not have to count hatchery salmon along with wild fish when deciding whether to protect a fish species under the Endangered Species Act.

On August 14, U.S. District Judge Michael Hogan in Eugene, Ore., nixed a lawsuit brought by a coalition of farm, forestry, and other property-rights advocates against the National Marine Fisheries Services.

The lawsuit challenged all of the agency's 16 listing decisions on West Coast salmon.

The coalition argued that the listing decisions on those salmon populations violate the law because the agency did not give equal weight to the hatchery fish.

For the ag groups involved in the case, the decision came as a surprise. In 2001, the same judge ruled that the federal fisheries agency acted illegally by counting only naturally spawned salmon and disregarding hatchery-bred salmon when deciding whether or not to list the Oregon Coast coho as a protected species under the Endangered Species Act.

"In a sense, it was a shock," said John Stuhlmiller, director of state affairs for the Washington State Farm Bureau, referring to Hogan's recent decision. "It isn't a complete retraction, but there is some backpedaling."

In the lawsuit, the Washington State Farm Bureau was joined by various ag groups, among them the Coalition for Idaho Water, Idaho Water Users Association, Idaho Farm Bureau Federation, Central Coast Forest Association, California State Grange, Oregon State Grange, Greenhorn Grange, Jackson County Pomona Grange, and the Pioneer Irrigation District.

Stuhlmiller said the 16 salmon listings encompass a huge sweep of land in the Pacific Northwest and California.

"There's no question about it," he said.

He warns that if the current fish listings stand, fish will be listed longer - maybe forever.

"If you can't count hatchery fish, how will you ever recover the fish?" he asked.

For agriculture, this is a huge issue, Stuhlmiller said, because listings trigger land- and water-use regulations.

California State Grange Master Randall Lewis echoed similar concerns, pointing out that to change land- and water-use regulations that have been on the books for decades is like pulling the rug out from under agriculture.

"If you do that, you change the land use from agricultural use to other uses, and that's a real problem, not just for farmers but also for businesses that serve the farmers," he said.

He's particularly concerned about the Klamath basin, where farmers have already seen their water cut off to protect fish.

Sonya Jones, attorney for Pacific Legal Foundation, which represents the property-rights coalition in this case, said that federal law requires that all the salmon be counted.

"The case is not over," she said. "We're appealing so that the federal officials will be required to do their job under the Endangered Species Act."

She also warned that the case has "important real-world consequences for the people and the economy of the Northwest."

"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," she said.

Brian Gorman, spokesman for the National Marine Fisheries Service, said agency officials are pleased with Hogan's decision.

He also said it's unfortunate that some people are under the mistaken impression that the agency makes its listing decisions simply by counting fish.

"It's more complex than that," he said, pointing to other factors such as how fish numbers got to where they are and whether those numbers are likely to go up or down.

"That complexity is mirrored in Hogan's ruling," he said.

In his decision, Hogan said that "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."

Gorman said the decision takes away the cloud of uncertainty hanging over the agency as it works on salmon recovery plans. And he pointed out that the agency values agriculture as an important player in the crafting of these recovery plans.

"I can't think of a group closer to the land and what happens to the land than farmers," Gorman said. "Without their contributions, the recovery plans won't be viable documents."

Other decisions

Hogan's recent decision is the second such decision this year involving hatchery fish.

In the first, which involves Upper Columbia steelhead, a U.S. District Court judge in Seattle ruled that hatchery fish couldn't be counted alongside naturally spawning fish when determining protection under the Endangered Species Act.

The Pacific Legal Foundation is also appealing that decision, asking that it be reviewed by the Ninth Circuit Court of Appeals.

In California, a U.S. judge will be deciding whether the National Marine Fisheries Service should take some steelhead populations off the "threatened" and "endangered" species lists.

In that lawsuit, a coalition made up of ag and forestry interests, argues that the agency's listing of those steelhead populations violates the Endangered Species Act because the act requires the agency to treat hatchery and wild fish the same.

The groups in that coalition are the California State Grange; United Water Conservation District; Central Coast Forest Association; California Forestry Association; and Greenhorn Grange.

Pacific Legal Foundation is also representing the coalition in this case.