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New Lawsuit to Target Proposed ESA Hatchery, Relisting Policy by Bill Rudolph NW Fishletter, December 7, 2004

The Pacific Legal Foundation, a property rights advocacy group, said it intends to sue NOAA Fisheries over its proposed hatchery policy dealing with ESA-listed salmon and steelhead.

Representing several West Coast building associations, farm groups and irrigators, PLF attorney Russ Brooks said Nov. 16 that the new policy is in direct contradiction to a 2001 court decision [Alsea Valley Alliance v. Evans] that forced the federal government to revise its policy. The Oregon District Court opinion found the fisheries agency had erred by offering ESA protection to only the wild component of Oregon coastal coho and not genetically similar, but hatchery-bred coho.

"We're going down the same old road again," Brooks told NW Fishletter, noting that the court has clearly said all members of a species must be treated equally. Brooks said if the proposed policy changes before it is finalized, he may have to file a new "intend to sue" letter to go after the policy.

In June, the federal government announced a proposed policy that would relist for ESA protection most of the same West Coast salmon and steelhead populations already protected, but would add genetically similar hatchery components to the listed ESUs [Evolutionarily Significant Units]. But the revised policy would allow ESA-listed hatchery fish marked by a missing adipose fin to be exempt from ESA "take" regulations, focusing protection on the naturally spawning component of the runs.

Attorney Brooks, who represented plaintiffs in the Alsea Valley suit, says the proposed policy misinterprets the Hogan decision, which found that hatchery coho genetically indistinguishable from their wild brethren deserved the same protection under the ESA.

By counting only the wild component of each run for protection, the fish agency plans on relisting all currently protected stocks on the West Coast. PLF says that's simply an "end run" around the Alsea decision.

The PLF "intend to sue" letter says that NOAA Fisheries has misinterpreted the ESA's purpose as defined by Congress, which called for conserving ecosystems of listed species and providing a program for conserving the species. Citing a 1991 federal memo, Brooks argues that the federal fish agency has redefined the ESA's purpose based on a main tenet of conservation biology-- to conserve the genetic diversity of species and their ecosystems--a phrase not in the ESA.

The PLF also says the government's concept of the ESU compartmentalizes populations into smaller groups than the ESA allows, and does not agree with Congress' intent when it defined a "distinct population segment" [DPS] in the ESA as a population segment that "interbreeds when mature."

Moreover, Brooks says, the feds' ESU concept contradicts itself. In cases like the listed chinook in Puget Sound, where nearly two dozen populations are listed, most do not interbreed, but are genetically similar. In this case, he says, "any one population within the ESU is not distinct from one another," and shouldn't be listed in the first place since none satisfy the "distinct and interbreeding" criteria established by Congress. Brooks says the listings are illegal because the feds have arbitrarily created population units that do not qualify as DPSs.

"NMFS must recognize that hatcheries can have an important role in contributing to salmon recovery," says Brooks in the PLF letter. "Instead, NMFS continues to capitulate to environmental lobbyists who assert that hatchery fish threaten the ecology of wild fish and equate hatcheries with zoos."

When the government rolled out its proposed policy at the end of May, undersecretary of commerce for oceans and atmosphere Conrad Lautenbacher said the new federal policy would "reinforce the agency's commitment to protect naturally spawning salmon and their ecosystems." But he also said the agency recognized the potential contributions of well-run hatcheries to rebuilding depressed natural stocks, along with the important role they played in fulfilling trust and treaty responsibilities.

On Nov. 15, the feds released their environmental assessment of a proposed change to ESA rules that would exempt hatchery fish with clipped fins and resident steelhead from "take" provisions of the law.

For now, the feds propose maintaining protection for the 26 West Coast stocks, moving upper Columbia steelhead and Sacramento winter-run chinook from the "endangered" to "threatened" status, and bumping up Central California coastal coho to "endangered."

The Oregon coastal coho stock that was the focus of the original lawsuit is still delisted, though it remains protected under Oregon's ESA law. It will remain so until the relistings take effect in June 2005, though rumors have circulated that the stock may be ripe for delisting by then. A NOAA Fisheries review of the coho situation should be completed soon.

As the feds' environmental assessment shows, the coho stock has rebounded strongly in the past few years; 163,000 natural spawners in 2001, 264,000 in 2002 and 188,000 in 2003, numbers that "far exceed the abundance observed for the past several decades." But the assessment also points out that the long-term trends of the ESU's productivity are still negative due to poor performance of brood years from 1994 to 1996.

But the prospect of seeing other ESUs delisted anytime soon is pretty dim. NOAA scientist John Stein, speaking at the Nov. 9-10 flow symposium in Portland, said every listed stock in the Columbia Basin had "room to improve" when judged by the agency's viable salmon population yardstick--abundance, productivity, spatial structure, and diversity.