Millions in Support of Fish Selling
by Robert Stokes
Part 4 - Salmon and Dams
Seven species of anadromous salmon and trout inhabit the northern rim of the Pacific Ocean. Twelve spawn in the Columbia River. Billions of dollars have already been spent on a process governed by that strange logic. Events in Portland federal Judge James Redden's court suggest the cost of Endangered Species Act (ESA) compliance on the Columbia River will continue to rise, perhaps soon, perhaps dramatically.
In an earlier Wheat Life column, I said "The Devil was in the details" of Columbia River salmon planning. Grab a fresh cup of coffee and follow me to the beginning of the story in the early 1990s. I have intentionally avoided excessive technical discussion. E-mail me for more information if needed.
ESA is rarely applied to what the public and scientific community consider a biologically distinct species. In high school biology we learned an animal species was a collection of individuals capable of interbreeding to produce fertile offspring. Breed and race are common terms for finer distinctions among domestic animals, for example collies and German shepherds. Among wildlife a comparable term is subspecies. Most ESA listings apply to subspecies. For example, the northern spotted owl (ESA listed) is one of three subspecies of the species spotted owl (unlisted). Anyone with a litter of mixed-breed puppies knows how little animals care about breed/race/subspecies distinctions. Try to sell them and you discover it is people who care.
The seven anadromous species of salmon and trout governed by the Convention for Conservation of Anadromous Stocks in the North Pacific Ocean (U.S., Canada, Russia, Japan) provide a convenient inventory of North Pacific salmon and trout. These range from California to Japan. The greatest abundance is in the north—British Columbia, Alaska, Eastern Russia. Though not as abundant, salmon are widely distributed in the Northwestern United States. At least one species spawns in most of Washington state's 39 counties. The Columbia River and its tributaries contain five salmon species: chinook, sockeye, coho and steelhead spawn above Bonneville dam; chum only spawn below.
Former Idaho Representative Helen Chenoweth once asked how something sold in grocery stores could be endangered. For that impertinent question she got a face full of canned salmon from an enraged environmentalist. Since that incident, Columbia River salmon runs have increased. In 2001, nearly 2-million adult salmon returned to the Columbia River above Bonneville dam, a record since counting began in 1938 with completion of that facility. Some of those fish undoubtedly found their way to Chenoweth's grocery store.
The answer to Chenoweth's question is found in the bureaucratic politics of salmon. Previously called the Bureau of Commercial Fisheries, then National Marine Fisheries Service, NOAA Fisheries has provided federal support to marine commercial and recreational fish and fishermen for over a century. Under long-standing terms of the Fish and Wildlife Coordination Act, that support included advocating fishery interests in federal land and water resource development decisions like building and operating the Columbia River dams.
Imagine a civil proceeding in which one side's attorney is promoted to judge. That is what the 1973 enactment of ESA made possible. NOAA Fisheries could gain regulatory authority over the Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration, agencies before which its staff previously had to plead cases for fish and fishermen. In geographic terms, ESA promised to extend the authority of NOAA Fisheries into most Northwestern land and water use decisions, private as well as public. The law would similarly expand the geographic reach of pro-fish private litigators under its "citizen enforcement" provision. Throw in the political muscle of well-organized sport and commercial fishermen and the emotional/political/legal leverage of Indian fishing treaties and you have an advocate's dream.
With one problem. ESA does not automatically apply to all fish and wildlife. As suggested by its title, "Endangered Species Act," the law can only be invoked on behalf of populations deemed at risk of extinction. Hence Chenoweth's grocery store quip. How can a resource found nearly everywhere in the Northwest, in sufficient abundance to sustain intentional (even commercial) harvest, be considered endangered?
The ordinary meaning of the terms species and extinction cannot sustain such a conclusion. Here is one of many points in the ESA process where "outsiders" (non-environmentalists, non-fish and wildlife advocates) must recognize that the involved scientists and administrators are not disinterested. The fisheries biologist's goal is not objectively deciding whether (or not) salmon are endangered, much as you trust your physician to objectively decide whether (or not) you are sick. His goal is justifying a listing (endangerment determination), an action he knows will advance the primary values of his profession and employing institution, fish, fishermen and environmentalism. See Wheat Life, February 2006 for further discussion of the shared culture of fish and wildlife scientists and environmental advocates.
The "distinct population segment" (DPS) provision provides a path to the goals shared within that culture. "The term species includes any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." That ESA sentence authorizes implementing agencies to split a species into smaller categories, whether or not such division is scientifically recognized. Effectively, agency scientists can cut and paste population definitions on the fly during ESA implementation proceedings. Congress subsequently recognized the hazard of placing such power in the hands of inherently partisan (pro-wildlife) agencies. Accordingly, Senate committee language admonished ESA implementing agencies to "exercise this authority with regard to DPS's" . . . "sparingly and only when the biological evidence indicates that such action is warranted." That admonition was elevated to statutory language in the ESA reform bill recently passed by the House of Representatives.
The usefulness of the DPS provision to environmental and pro-fish advocates became apparent when, in 1990, petitions began to be filed to list Columbia River salmon under ESA. The NOAA Fisheries scientists responsible for processing those petitions knew what environmentalists and salmon advocates wanted most. Upon returning to the governorship of Idaho in 1986, Cecil Andrus proposed lowering reservoirs behind the Snake River dams to benefit salmon, as well as deflect pressure to use Idaho irrigation water for the same purpose. That idea soon evolved into the campaign to breach (remove) the dams themselves. See Andrus's book "Politics Western Style" for more on the early days of the Snake River dam busting campaign.
With the end game in full view, NOAA Fisheries scientists invoked ESA's DPS provision by defining the term "Evolutionarily Significant Unit" (ESU). As employed by NOAA Fisheries, "An ESU is defined as a population that 1) is substantially reproductively isolated from conspecific [belonging to the same species] populations and 2) represents an important component in the evolutionary legacy of the species."
"Substantially," "important " and "evolutionary" are the key words. Like all living organisms, individuals and groups of salmon differ to varying degrees depending on whether they segregate or intermingle during spawning. "Significant" and "important" are subjective terms for evaluating such differences. They permit neither quantitative calculation nor replicable testing, the latter being the hallmark of genuinely scientific concepts.
When applied to salmon, "evolutionary" is equally subjective. All scientific conclusions originate with formation of hypotheses, a process the rest of us call speculation. What produces objective (therefore scientific) conclusions is reproducible testing. Unfortunately, salmon are not fruit flies. Evolution of specific behaviors and characteristics can take decades or centuries, always longer than the time available within ESA processes to test distinction based on evolutionary effects.
By giving the ESU definition no quantitative (meaning scientifically replicable) boundaries and by focusing on evolutionary effects, the authors of the ESU concept granted themselves (and/or fellow agency scientists) broad discretion to carve locally varying salmon populations into whatever ESUs served their purposes.
This is not to say quantitative or otherwise scientifically replicable data were not considered. The ESU definition goes on to list some of these. "Information used to determine degree of reproductive isolation includes degree of genetic differentiation, incidence of straying, recolonization rates and physical or ecological barriers to migration. Research on genetics and life history, habitat differences and the effects of stock transfers or supplementation efforts can provide information about evolutionary significance."
When contemplating an occupational change you might consider similar quantitative (meaning measurable in scientifically replicable ways) information like your age, current income and assets before deciding whether increased income was "substantial" or "important" enough to justify leaving a familiar job and community. But the final (move, stay) decision would be subjective, meaning you might move while another person facing the same facts might stay. Likewise for an investment decision. You can gather objective (replicable) facts about the past and present. However, you must (subjectively) speculate about their implications for the future. In the case of salmon and ESA, the future is presumably the period during which "evolutionary significance" is relevant.
NOAA Fisheries scientists used the ESU definition, including its subjective elements, to classify Northwest salmon into populations having legal status under ESA. They started by eliminating hatchery fish, thus ignoring the overwhelming majority of juvenile and adult salmon. More on that decision in later columns. The process dramatically elevated (I would say maximized) the legal importance of "wild" Columbia River salmon, though populations of each scientifically recognized species are abundant throughout the North Pacific and widespread elsewhere in the Northwestern U.S.
The 12 defined Columbia River "wild" salmon ESUs gained the same legal status they would have if each were a scientifically recognized, independent species, unique to its designated subregion of the Columbia River basin. Abundant sockeye salmon spawning in the Okanagan and Wenatchee basins were made (legally) distinct from each other, as well as from (scarce) sockeye salmon spawning in the Snake River basin. In subsequent application of ESA, those three ESUs would be considered as different as bald eagles and timber wolves. Chinook salmon entering the Snake River basin during the spring and summer were deemed legally distinct from the same species seeking the same destination in the fall. Again, for ESA purposes, as different as buffalo and whooping cranes. And so on.
It would take separate columns for each to describe how such reasoning created four legally independent ESUs above the Snake River dams: fall chinook, spring/ summer chinook, sockeye and steelhead. The consequences of those classification decisions were as evident to those who made them as they are today. They put the four lower Snake River dams at maximum risk of attack under ESA.
The attack soon came. In 1993, Bruce Babbitt (former president of the League of Conservation Voters) became the U.S. Secretary of Interior. Soon after, Babbitt's assistant in that position, Will Stelle, became Northwest Regional Administrator for NOAA Fisheries. From that position he supervised most of the federal scientists involved in the Columbia River - ESA process, including those whose work was just described. By 2000, Stelle's plan (Biop-2000) was final and official, including a backup provision for Snake River dam removal.
Under U.S. administrative law, federal judges give greater deference to initial administrative actions than to subsequent changes. Judge Redden invoked that rule, among other considerations, in voiding Bush administration efforts to revise the Clinton/Babbitt/Stelle plan. Among the attempted revisions was removal of the Snake River dam busting backup provision.
Absent more dramatic (and unlikely) action by the Bush administration, for example invoking ESA's "God Squad" to remove Columbia River salmon from ESA jurisdiction, we may be stuck with the decisions of the '90s, including the population classification system just described. Bad news as we enter the uncertain future of Redden-presided litigation and post-Bush administrative politics.
The Devil is in the details. More next month.
Hundreds in Idaho Mourn Former Rep. Helen Chenoweth-Hage by Jesse Harlan Alderman, Seattle Post-Intelligencer, 10/9/6
Snake Fall Chinook Studies Get More Complicated by Bill Rudolph, NW Fishletter, 12/20/6
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