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Judge Discounts Hatchery Fish in Salmon Recovery Efforts by Cookson Beecher Capital Press, June 14, 2007

SEDRO-WOOLLEY, Wash. - A recent salmon decision handed down by a federal judge could have far-reaching effects on agriculture in the Pacific Northwest and California, said John Stuhlmiller, assistant director of government relations for the Washington State Farm Bureau.

On June 13, U.S. District Judge John Coughenour in Seattle ruled that hatchery-bred fish cannot be counted alongside naturally spawning fish when determining protection under the Endangered Species Act.

His ruling applies specifically to protections for the Upper Columbia steelhead.

As a result of the ruling, the listing of the Upper Columbia River steelhead was raised from "threatened" to "endangered."

In this case, the Upper Columbia consists primarily of the Methow, Okanogan, and Wenatchee watersheds.

But Stuhlmiller warns that because the ruling also raises questions about overall hatchery policy, it has the potential to affect ESA listing designations in Oregon, Idaho, California and other parts of Washington.

Simply put, a "threatened" listing means a species is at risk. An "endangered" listing means it is in danger of extinction.

Land-use regulations come into the picture because when a fish population is listed, critical habitat requirements such as buffers, as well as regulations pertaining to water temperature, pesticide runoff, and irrigation withdrawals, kick in.

An "endangered" listing would generally require stricter land-use regulations than would a "threatened" listing, although both put landowners under the gun to provide the habitat the listed species needs to survive and thrive.

Ag's reaction

For many farmers and ranchers, Coughenour's decision comes as disheartening news because it flies in the face of an earlier court decision, often referred to as the "Alsea decision," which required hatchery fish to be counted when determining whether a fish population should be listed.

"Bottomline, it guts the Alsea decision," Stuhlmiller said.

In Alsea Valley Alliance v. Evans, U.S. District Court Judge Michael Hogan in Oregon ruled that the National Marine Fisheries Service acted illegally by counting only naturally spawned salmon and disregarding hatchery-spawned salmon when deciding whether or not to list the Oregon Coast coho as a protected species.

As a result of that decision, the federal fisheries service reevaluated its listing designations and listed the Upper Columbia steelhead as "threatened" instead of "endangered" - primarily because fishery scientists credited hatchery fish for helping in the recovery of the steelhead.

In his recent decision, Coughenour described the "threatened" listing of the Upper Columbia steelhead as "unlawful" because both it and the federal fisheries service's hatchery listing policy run contrary to the purpose of the ESA, which is to promote and conserve naturally self-sustaining populations.

"It is clear that hatchery fish have important differences from wild fish," Coughenour said in his decision.

The case

Trout Unlimited, along with three environmental groups and three other fishing groups, launched the lawsuit against the National Marine Fisheries Service.

The Washington State Farm Bureau, the Idaho Water Users Association, the Coalition for Idaho Water, and the Building Industry Association of Washington, were interveners.

Both the Farm Bureau and the Idaho Water Users intend to appeal the case to the 9th U.S. Circuit Court of Appeals.

"The policy is flat wrong," said Stuhlmiller. "We want to make sure that Judge Hogan's ruling is honored."

Bob Lohn, administrator of the National Marine Fisheries Service's Northwest regional office, said the agency is disappointed in the judge's decision.

"We continue to believe hatcheries can serve a valuable purpose toward recovery," he said.

Other cases

Cases on this same issue are pending in Oregon and California district courts. In Oregon, Judge Hogan, the same judge who ruled that hatchery fish should be counted when making listing designations, will serve as the judge.

"I'm sure he'll be writing some further advice," Lohn said.

Lohn also said he thinks it's important to have a uniform hatchery policy.

"We want to get advice from the other two cases," he said. "Hopefully, we can harmonize policies. The real question is not if a species is endangered or threatened, but how can we rebuild these runs as quickly as possible."

Agriculture

When referring to agriculture specifically, Lohn said he agrees with one of the conclusions of a recent climate-change report done by a leading scientific group that pointed out that keeping farms and ranches in business is key to salmon recovery.

"That still remains true," said Lohn. "Key protections for salmon will come from agricultural landowners."

As for the immediate effects of the recent decision on agriculture, Lohn said it probably won't make a big difference to agriculture.

While Farm Bureau's Stuhlmiller might agree with that, he said the bigger issue is that as a result of the decision, it will be harder to get a species delisted.

For agriculture, that's a critical issue, he said, because instead of land-use restrictions easing off as would be the case when a species recovers and is delisted, the restrictions will remain frozen in time - or get stricter.

"You'll be stuck with land-use restrictions and you'll never be able to go back to less-restrictive regulations," he said.

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