Judges Hear Cases on
by Gene Johnson, AP Legal Affairs Writer
SEATTLE - The federal government came under fire on all sides Monday for the way it counts hatchery-raised salmon and steelhead under the Endangered Species Act.
Lawyers for building industry, farm and property rights groups asked a federal appeals court panel on Monday to undo the listings of 16 West Coast salmon and steelhead populations under the act, arguing that thanks to abundant hatchery fish, the stocks are nowhere near extinction.
Meanwhile, in a separate-but-related case, attorneys for an environmental law firm argued that federal officials were wrong to reduce the listing of Upper Columbia River steelhead from "endangered" to "threatened" based on high numbers of hatchery fish. The act requires officials to focus on the health of wild fish, they argued.
The three judges from the 9th U.S. Circuit Court of Appeals seemed reluctant to second-guess the judgment of the National Marine Fisheries Service on either count.
"It looks to me as though (the law) left a lot of discretion to the agency," Judge Andrew Kleinfeld said.
In its lawsuit, the Alsea Valley Alliance of Oregon challenged the listing of 16 salmon and steelhead populations in Washington, Oregon and California, claiming the government was lowballing its estimates of salmon and steelhead populations by counting only wild fish. That harmed the economy by restricting development and agriculture to protect salmon habitat, the groups argued.
U.S. District Judge Michael Hogan rejected their claims last year, finding that federal officials were not required to treat wild and hatchery fish identically.
Scientific studies have shown that while wild and hatchery fish in a river may be genetically the same, they have behavioral differences that make wild fish more successful at surviving. Hatcheries can boost overall numbers of fish in a stream, but the fish they release also have poor reproduction rates and can compete with wild fish for food and mates. In some cases they can actually hurt the sustainability of wild fish stocks, scientists have found.
Environmentalists have argued that the point of the Endangered Species Act is to restore plant and animal populations to self-sustaining levels, without intervention from humans. But the Pacific Legal Foundation, which represents the Alsea plaintiffs, argues that the law is "intended to guard against the extinction of species, not to return ecosystems to the status and conditions they were in over 100 years ago."
The other case concerns a decision the National Marine Fisheries Service made in 2005 to start considering hatchery fish to the extent they contribute to the health of naturally spawning populations - for example, if the hatchery fish help expand a run's abundance, productivity, genetic diversity or spatial distribution.
In the Upper Columbia River, the agency found that hatchery fish reduced the immediate risk that steelhead would go extinct, and accordingly changed the status of the steelhead from "endangered" to "threatened," which means a species is likely to become endangered in the future.
Fishermen and conservationists sued, arguing that it was irresponsible to reduce protections for wild fish based on high numbers of human-raised hatchery fish, and U.S. District Judge John C. Coughenour in Seattle agreed. Coughenour implied the agency's actions were based on political rather than scientific concerns.
Steelhead are rainbow trout that, like salmon, spawn in rivers but go to sea, where there is much more food, and return to their natal streams to spawn. As logging, farming, dam construction and urban development destroyed their river habitat, hatcheries have been built to fill the gap.
For generations, hatcheries focused on providing large amounts of fish to be caught, but in recent years the government has realized that approach is not sustainable, and in many areas natural stocks have collapsed. Since then, hatcheries have started changing to mimic natural environments, so that hatchery fish are not as susceptible to disease and learn to seek food, rather than receive it.
Patti Goldman, an attorney for the environmental law firm Earthjustice, told the judges that not all hatcheries have changed, and it's not clear whether the new approach will truly bolster wild stocks, with hatchery fish spawning naturally.
"The only way to tell if they're really achieving that goal is to see whether hatchery fish are succeeding in the wild," she said.
Ellen J. Durkee, a government lawyer, asked the judges to defer to the fisheries service.
"There are no universal conclusions that can be drawn about the benefit or the detriment of these hatchery programs," she said. "Hatchery programs can have benefits, particularly in the short term, and they can have detriments, particularly in the long term."
The judges did not say when they would rule in the two cases.
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