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Ruling on Coho Listing Endangers Agreements by Jonathan Brinckman The Oregonian, September 27, 2001

Seven of the 12 stocks of Columbia Basin salmon or steelhead listed under the Endangered Species Act are at risk of losing their federal protection, according to a memo prepared by the legal staff of the Northwest Power Planning Council.

The memo, scheduled to be presented to the council today at a meeting in Spokane, reveals that complex legal and biological issues that stem from a Sept. 10 ruling by a federal judge. They have the potential to derail federal protections for salmon across the West Coast.

This would potentially reverse a massive salmon recovery effort throughout the Columbia Basin -- a wildlife stewardship that has in the past two decades cost more than $5 billion and governed river use in a region the size of France.

The memo says the seven stocks, including three steelhead or chinook populations found in Portland waterways, are vulnerable to the same legal arguments that led U.S. District Judge Michael R. Hogan in Eugene to order Oregon coastal coho salmon removed from the nation's list of threatened and endangered species.

The problem: Although the National Marine Fisheries Service, the nation's top salmon agency, counted hatchery-born fish when it defined populations of salmon that needed protection, it did not extend federal protection to those hatchery fish. The ruling imperils the federal policy of protecting wild fish while allowing the sport harvest of hatchery fish.

Although a wider legal analysis has not been completed, federal officials say the impact of the ruling could extend far beyond the Columbia Basin.

Brian Gorman, a spokesman for the fisheries service, said Wednesday that 20 of 26 West Coast stocks of salmon and steelhead appear to be vulnerable under Hogan's ruling.

"This has vast legal, biological, social and political implications," Gorman said. "This could be a regulatory nightmare."

Gorman said the fisheries service has not yet decided whether it will appeal the ruling, as requested last week by Gov. John Kitzhaber. The fisheries service has until Nov. 9 to make that decision.

Gorman said the ruling could force the fisheries service to re-examine every listing decision it has made over the past decade. "Other than realizing the implications of Hogan's ruling are big, I don't think anyone here for sure knows where we are going," Gorman said. "There is a Damoclean sword here. We don't know when it's going to fall -- or who it's aimed at."

Although Hogan's ruling immediately removed federal protection for Oregon wild coastal coho, which were listed as threatened in August 1998, state protections remain unaffected. State fishing rules say sport fishers can harvest only those coho missing the adipose fin, evidence that the fish was born in a hatchery.

Federal officials and power council staff say they do not know what will happen next. Hogan's ruling does not carry legal precedent beyond Oregon, and the fisheries service says it has no immediate plans to remove federal protection for other stocks.

But the ruling sets the stage for other challenges.

Some people are pleased "This ruling cuts to the heart of what NMFS has done: It has tried to be all things to all people," Charles Hudson, a spokesman for the Columbia River Inter-Tribal Fish Commission. The tribal fish commission, which represents four tribes with treaty rights to Columbia salmon, supports Hogan's ruling because it does not think hatchery fish should be distinguished from wild fish.

The tribes want salmon to be restored to all the rivers of the Columbia Basin where they once spawned, Hudson said. He says that distinguishing between wild and hatchery fish works against restoration because it allows fishing to continue even when rivers that wild fish need are unprotected.

Russ Brooks, an attorney for the Pacific Legal Foundation, said his organization is considering legal action against other West Coast salmon listings. The Pacific Legal Foundation, a Sacramento-based group that defends property rights, represented the Alsea Valley Alliance in its case against the fisheries service.

"Judge Hogan's decision calls into a question a number of other listings," Brooks said. "It certainly points the way for another judge to rule our way."

Conservationists are worried. They think that hatchery fish pose a significant threat to wild fish because they can weaken wild fish by interbreeding and because they can take food and habitat from wild fish.

"Hatchery fish have to be managed so they are not a threat to the recovery of wild fish," said Bill Bakke, director of the Native Fish Society.