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NMFS Unveils Proposals for New ESA Listing Policy

by Bill Rudolph
NW Fishletter, August 6, 2002

Conservative lawyers and Indian tribes were dismayed, but environmentalists were generally encouraged after NMFS released a working draft of its new policy on listing salmon and steelhead populations under terms of the Endangered Species Act. The new policy has been under development since the National Marine Fisheries Service decided not to appeal a federal court decision that found fault with the way the agency considered hatchery stocks in listing decisions.

Last year, Judge Michael Hogan of the US District Court in Oregon threw out an ESA listing for Oregon coastal coho. Hogan ruled that NMFS had violated the ESA by designating some hatchery stocks as part of the listed coho evolutionarily significant unit, but not giving them the same level of protection as the wild component of that ESU. The judge said the ESA doesn't allow for making such distinctions when the fish are genetically the same.

Since then, many petitions have been filed with NMFS to de-list most West Coast salmon and steelhead stocks. Hogan's ruling has also been appealed by environmental groups to the 9th US Circuit Court of Appeals. But NMFS intends to play by Hogan's rules, even though his ruling has been stayed by the Niners during the appeal.

"The new policy is intended to ensure, in accordance with the Court's ruling, that hatchery populations are considered in determining whether or not to list an ESU under the ESA," NMFS regional administrator Bob Lohn wrote in a July 23 letter to co-managers that accompanied the agency's draft policy, which is being circulated throughout the region for comment.

NMFS now proposes to determine the hatchery and wild components of an ESU before assessing its status under the ESA. Previously, the agency identified the natural component of an ESU first, then determined which hatchery stocks were part of it.

Those groups seeking de-listings by adding hatchery fish returns to wild fish numbers were not comforted by the new proposal because it still calls for extinction risk to be based on "the likelihood that an ESU as a whole is sustaining itself through natural reproduction in its natural ecosystem over the long term."

"The NMFS proposal violates the spirit of the Hogan decision," said Russell Brooks, an attorney with the Pacific Legal Foundation, the property rights group that took NMFS to court over the Oregon coho listing. "I am absolutely shocked."

Brooks said the balance of legislative history weighs against the proposed policy. "It's hard to believe a majority of Congress intended for bureaucrats to be separating fish in a creek." He said the agency's citation of studies that accompanied the draft policy seems "one-sided," with most supporting the notion that hatchery fish are genetically different from wild fish from the same stock. "I am concerned that Lohn is handcuffed by a lot of bureaucrats and scientists leaning to the environmentalists' side," Brooks said.

Earthjustice attorney Patti Goldman, who is leading the Hogan appeal for environmental groups, said they were pleased with NMFS for basing the proposed listing policy on wild salmon, but they still had some differences. "Hatchery fish should never be used in a listing," she told NW Fishletter.

In its proposal, NMFS said it will consider "both positive and negative effects" of artificial propagation in ESA status reviews and listing determinations. "This consideration will be given in the context of whether artificial propagation represents a protective effort that provides a genetic reserve for the ESU, contributes to the long-term self-sustainability of the ESU in the natural ecosystem, or reduces threats to the ESU through the reform of harmful hatchery practices," Lohn said in his letter.

NMFS mentioned some issues with hatcheries in a Q-and-A sheet that accompanied the draft policy. The agency said supplementation--the strategy of increasing wild populations with fish raised in hatcheries--"has been shown to be effective in bolstering the numbers of naturally spawning fish in the short term under certain conditions. However, the premise that salmon supplementation can be used to provide a net long-term benefit to natural populations remains an untested hypothesis. This does not mean, however, that artificial propagation cannot provide this type of benefit, and NOAA fisheries is open to the future possibility."

But Columbia Basin Indian tribes, long supporters of the fish supplementation strategy, were cool toward the proposed policy. "This is a working draft of a listing policy, not an artificial propagation policy," said Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission. "But it looks disturbingly like the old standard policy." He said it was evident from the studies cited by NMFS that the agency had failed to consider a broader body of literature that was more objective on the issue of fish supplementation. He said his commission's staff was beginning work on an extensive set of comments on the draft policy.

Lohn said that guidance for operating hatchery programs is distinct from considering existing hatchery programs in ESA listing decisions, and that such guidance will be addressed separately this summer after consultation with tribal, state and federal co-managers.

Portland attorney James Buchal, who filed de-listing petitions on behalf of several groups throughout the Northwest in the wake of the Hogan decision, is unhappy with the proposed policy. "NMFS still refuses to answer the simple question posed by the ESA," Buchal told NW Fishletter. "Is this species going to go extinct or not? Instead, NMFS puts forth a pile of qualitative mush under which, even if the extinction risk for the species is zero, NMFS may list species as endangered to build its protect-the-ecosystem empire. This may or may not be a legally permissible interpretation of the ESA, but it is surely not one compelled by law. It's a political choice, and those who voted for Bush instead of Gore have been betrayed."

Olympia attorney Jim Johnson, who has led an effort to de-list Puget Sound chinook and several other stocks in a Washington, DC, lawsuit (Common Sense Salmon Recovery vs. NMFS), said he was confused by the draft policy. It claims to build on the Hogan ruling and the best available science, "but the draft continues to be a rationalization for past policies," he said. "We've already filed with the court in DC all the genetic data, and it doesn't support NMFS, nor what they propose."

Johnson said analysis of the genetic information on Puget Sound stocks finally supplied by NMFS shows hatchery fish to be identical to wild stocks, and excluding them from the ESU is contrary to the best scientific data. He noted that the fish agency has filed a motion to strike his analysis of the genetic data from the record, arguing that parties should defer to the agency's scientific analysis. Johnson said his analysis was completed by a well-known environmental consulting firm, LGL Limited.

NMFS spokesman Brian Gorman said co-managers have two weeks to get comments back to the agency. Then a public draft will be released and discussed in public meetings throughout the West Coast. NMFS will take general comments and incorporate them in a final rule governing the hatchery listing policy. After that, NMFS will complete the status reviews of all listed salmonids without any specific time frame for finishing the process. "After the co-manager comments come in two weeks, everything else is pretty much up in the air," Gorman said.

Bill Rudolph
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