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Oregon Salmon Ruling could Have Ripple Effect along the West Coast by Lynda V. Mapes, staff reporter Seattle Times - October 21, 2001

What started as a narrow court order — about one fish in one river in one state — could compel changes in salmon listings under the Endangered Species Act (ESA) up and down the West Coast, say federal fish managers.

The court order, issued by U.S. District Court Judge Michael Hogan last month, found that once federal fisheries managers designate an "evolutionarily significant unit" or distinct population group under the ESA, they can't single out some fish within it for protection while excluding others.

Yet that is precisely what the National Marine Fisheries Service has done in listings of fish from California to Washington throughout the 1990s, including the 1999 listing of Puget Sound Chinook.

While the Sept. 10 ruling legally pertains to only one coastal-coho population segment in Oregon, it could affect listings of salmon and steelhead all over the coast, including Puget Sound.

The fisheries service may appeal the ruling. Or it could list all Oregon coastal coho for protection — including hatchery fish excluded from federal protection when coastal coho were listed as a threatened species.

If that approach passes muster with the judge, a similar policy could be adopted West Coast-wide. Such a policy shift would be bad news for Puget Sound fishermen.

They catch 36 stocks of Puget Sound hatchery chinook not currently covered by the listing. The fish are targeted because they are manufactured, cranked out like widgets by hatchery workers to give sport, tribal, and commercial fishermen something to catch.

Listing those fish for protection could result in fishing closures and restrictions. And that could quickly undercut the mission of the hatcheries themselves. Why manufacture fish nobody can catch?

"They could get themselves and us in a real box," Jim Anderson, executive director of the Northwest Indian Fisheries Commission, said of the fisheries service.

Some believe the fisheries service will simply redefine the distinct population groups affected by the ruling to include only the fish they wanted to protect in the first place: natural spawners.

The ESA was intended to protect wild animals and their essential natural habitats, not zoo populations or farmed animals.

"The true measure of health isn't how many hatchery fish are returning," said Rob Jones of the National Marine Fisheries Service (NMFS). "The goal is streams that can support fish, and fish that can support themselves."

But the results of that policy can be perplexing in a place like Puget Sound, home to 41 populations of hatchery chinook. Five populations of hatchery chinook are protected in Puget Sound because they are about the only chinook left in their respective rivers.

None of the remaining 36 populations of hatchery chinook are protected. Yet if they spawn naturally, their genetically identical offspring are.

"NMFS has gotten themselves in a corner here," said Bruce Sanford, who manages chinook recovery for the Washington Department of Fish and Wildlife. "They have said all naturally spawning fish are listed. Well, there are a lot of hatchery fish out there spawning."

It's the kind of complexity that has given ESA critics a field day, saying implementation of the law, in the words of Oregon attorney James Buchal is "just plain wacko." After the Hogan decision, Buchal filed administrative challenges to listings of salmon and steelhead across Washington, including Puget Sound chinook.

A legal challenge to the listing is also pending in U.S. District Court in Washington, D.C.

For some, the ESA hasn't gone far enough.

Washington Trout, a conservation group, filed a 60-day notice of intent to sue the fisheries service last month, alleging the agency allows too much fishing on threatened chinook.

The conservation group takes issue with the agency's approval of the management plan for the 2001-02 fishing season. The Washington Department of Fish and Wildlife and tribes have already agreed to the plan.

The complaint alleges the fisheries service didn't do the analysis required by law before approving the agreement. Weak populations of chinook also don't get the protection they need under the agreement, and could be fished to extinction, the complaint alleges.

Susan Bishop, of the fisheries service, said the management plan did not meet the agency's highest standards for protecting some weak chinook populations. But no populations were expected to "wink out" under the agreement, she said. And overall, the agency believes the agreement is in keeping with the goal of recovery, Bishop said.

Even if Washington Trout does file suit next month, said Jeffrey Koenings, director of the state Department of Fish and Wildlife, fishing would proceed as usual for the 2002 season.

"We have restricted fisheries but still have the ability to harvest some fish as long as we don't impede recovery," he said. "And we think we have met that test."