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Federal Judge Hears Wild vs. Hatchery Listings Issues by CBB Staff Columbia Basin Bulletin - December 6, 2002

A federal judge won't decide until next year on a lawsuit by Northwest landowners and development interests seeking to remove four salmon runs from the endangered species list.

Oral arguments in the suit against the U.S. Commerce Department were heard Nov. 25 in federal district court for the District of Columbia.

Three years ago, the Common Sense Salmon Recovery coalition challenged the National Marine Fisheries Service's 1999 decision to list the upper Columbia River chinook as an endangered species and three other salmon runs - Puget Sound chinook, lower Columbia River chinook and upper Willamette River spring chinook - as threatened species.

The group, which includes farmers, ranchers, small businessmen and local governments, mainly in Washington state, claims NMFS violated the Endangered Species Act by excluding hatchery fish from protection under the act.

Attorneys for coalition and the Pacific Legal Foundation said the federal government should count hatchery fish in the population of a salmon run when determining the run's likelihood of becoming extinct. They argued that since hatchery and wild stocks can and do interbreed in the wild and hatchery fish are plentiful, the salmon runs are not endangered.

"This listing was wrong from the beginning," James Johnson, an Olympia attorney representing the coalition, said. "They're the identical same fish as the so-called wild fish."

"Chinook salmon are abundant (in the Pacific Northwest). In fact we're currently seeing record returns" of adult spawners, said Russell Brooks, of Bellevue, Wash., representing the Pacific Legal Foundation, which represents county officials and developers who support the suit.

NMFS and other federal and state agencies have enforced the Endangered Species Act against farmers, other property owners and water users by restricting land use and development and cutting off water to irrigators in the Methow Valley of Washington, the plaintiffs' attorneys said.

The case seeks to expand a federal district court ruling last year in Oregon that overturned NMFS' listing of Oregon coastal coho salmon. The judge in the Alsea Valley Alliance decision said the agency violated the Endangered Species Act by excluding hatchery fish from protection after initially grouping them as part of the same "evolutionary significant unit" as wild stocks.

If hatchery fish were counted as part of the listed population, the coho probably would not have been found to be endangered.

NMFS is seeking to comply with the Oregon decision, but the court's order to delist the coho has been stayed pending an appeal to the U.S. 9th Circuit Court of Appeals by conservation and fishing groups.

During the hearing in the Washington, D.C., case, Justice Department lawyers argued the Alsea ruling has only a narrow application and said NMFS' is reviewing its other listings. They urged the judge not to rule until 2004, when NMFS is scheduled to issue a revised policy regarding the proper role of hatchery fish in response to the Alsea decision.

Ruth Ann Lowery, an assistant U.S. attorney, said the Northwest regional NMFS office has already moved to correct flaws in the listings for the three threatened chinook, along with those of 24 of 26 West Coast salmon made during the 1990s. She defended the current listing of upper Columbia chinook.

Also, NMFS is considering citizen petitions to delist various salmon runs and a petition to protect only wild fish and never include hatchery stocks, Lowery said.

"No one knows how it's going to come out," she said. She said that if the listings are overturned, wild stocks could suffer declines without federal protection.

NMFS made case-by-case decisions for each run on whether to include or exclude hatchery fish in the listing based on several criteria, she said. For example, it protected fish from some hatcheries along with wild upper Columbia chinook but not others. Lowery said the judge in the Oregon case upheld NMFS' overall practice of categorization of salmon into ESUs, based on geography, interbreeding and behavior.

In support of the listings, Kristen Boyles, an attorney with Earthjustice representing environmental and fishing groups, said the very purpose of the Endangered Species Act is to protect species in their natural habitat. Hatchery fish are not self-sustaining and their production is subject to the "political and budgetary whims" of government. For example, she said Washington state is considering closing some hatcheries.

Thousands of people have been attempting to comply with prohibitions on farming within 150 feet or more of river banks and other restrictions brought about by the listings, Brooks said. He urged Friedman to hold NMFS accountable for "illegal listings" that it has been enforcing for three years against farmers, ranchers and homeowners in Washington state. "Now the agency comes in and says, 'Oops, we were wrong. But let us get away with it,'" Brooks said. "My clients have suffered for nothing."

After the oral arguments, the judge said he did not expect to rule before the end of the year on the main issues of the Common Sense Salmon Recovery suit. This fall, Friedman denied the coalition's request for a preliminary injunction to block NMFS from enforcing the Endangered Species Act in the case of the four runs.

But at the Nov. 25 hearing, Friedman said he might consider a novel ruling that would grant partial victory to both sides. Friedman asked attorneys whether there was legal precedent that would support keeping the listings in place while giving some kind of other relief to landowners and irrigators. The judge's unexpected suggestion raised new legal issues that neither side's attorneys had researched.

Remedies other than delisting could include relief from enforcement of government land-use or other restrictions.

Friedman invited the Common Sense Salmon Recovery coalition's lawyers to research the issue and propose remedies short of delisting.

The government is expected to oppose the move. Lowery told Friedman such a ruling would create problems for federal land management and other agencies that are required to consult with NMFS on endangered species impacts of logging, road-building and other activities.

It would be difficult to enforce the Endangered Species Act piecemeal, she suggested.

But Johnson alleged that NMFS allowed commercial fishermen to increase their harvest of the same listed salmon in the Pacific Ocean and the Columbia River estuary. "They're in the fishing business," he said of the agency.

Johnson's charge that commercial fishing boats are harvesting endangered salmon and his specific suggestion that NMFS delayed the implementation of the Puget Sound listing in order to allow a fishing harvest increase led to one of the sharpest exchanges of the hearing. Boyles said Johnson made "factual misstatements" and noted that the Pacific Coast Federation of Fishermen's Associations is one of the groups that Earthjustice is representing in the case in hopes of keeping salmon on the endangered species list.

"There is no season on listed fish," she said. Under state and federal laws and regulations, only hatchery fish can be caught, and accidental by-catch of wild fish is strictly capped. The catch is restricted to hatchery fish bearing fin clips.