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Ruling Could Lead to Loss of Protection for Salmon by Erik Robinson, Staff Writer The Columbian, February 25, 2004

A federal appeals court has rejected an appeal by environmental groups to overturn a 2001 landmark ruling affecting the fate of salmon and steelhead across the West Coast.

A three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday dismissed an appeal by the Oregon Natural Resources Council and seven other organizations regarding the Oregon coastal coho salmon.

U.S. District Judge Michael Hogan ruled in September 2001 that the National Marine Fisheries Service erred by lumping hatchery and naturally spawning salmon together in a single group, then giving threatened species protection only to the wild fish. The Bush administration declined to appeal the decision, and instead pledged to review the status of all 26 stocks of West Coast salmon and steelhead listed under the Endangered Species Act.

Conservation groups appealed instead, but the 9th Circuit dismissed the appeal until NMFS finishes its review.

"The undercurrents in this decision highlight the power and responsibility the Bush administration holds over the future of our salmon," said Patti Goldman, an attorney with Earthjustice.

The appellate court's ruling effectively strips Endangered Species Act protection only from the Oregon coastal coho salmon, but the case is sure to affect salmon listings across the West Coast. One attorney said the ruling could lead to removal of numerous salmon stocks from the endangered-species list.

"Given the fact that we read in the newspapers practically every week about record salmon returns, it's hard to imagine they can justify these listings any longer," said Russell Brooks, attorney for the Pacific Legal Foundation, which brought the original case on behalf of a property-rights group in Oregon.

Hatchery-raised fish account for a major portion of those runs.

In the past, the fisheries service has maintained there are practical and scientific reasons for protecting wild fish but not their hatchery-raised cousins.

Biologists worry that fish raised in hatcheries will gradually lose the characteristics they developed over generations to adapt to specific rivers and streams, thus threatening their long-term survival. In the Columbia River basin, overfishing and dramatic habitat changes over the past century have driven the number of returning spawners from as many as 16 million to barely 3 million -- and most of those come from hatcheries.

Brian Gorman, a NMFS spokesman in Seattle, said the agency will complete the first of its status reviews by the end of March.

"In theory, for example, the Service could define hatchery coho as a separate (distinct population segment) from naturally spawned coho ..." Judge Clifford Wallace wrote, on behalf of fellow judges Donald Lay and Richard Tallman.

In a parenthetical aside, however, Wallace added, "the district court legitimately doubts this is possible."

Bush administration officials have indicated that it's unlikely the government will de-list populations where naturally spawning stocks are hanging on by a thread. "We're still in trouble because we don't have a self-sustaining natural population," NMFS regional Administrator Bob Lohn said in November 2001.

Salmon restoration has touched everyday life in the Pacific Northwest. Controversies include new federal rules curbing urban development, a debate over removing hydroelectric dams on the lower Snake River, and battles over logging and agricultural practices.