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New Policy may Complicate Seasons by Eric Barker Lewiston Tribune, July 26, 2002

Proposed rule could change distinctions between wild, hatchery fish

State and tribal fish and wildlife agencies may have to jump through more hoops to hold fishing seasons on hatchery salmon and steelhead runs if a proposed policy is adopted by the National Marine Fisheries Service.

But according to the agency's spokesman, healthy hatchery runs will not prevent struggling wild runs from being protected under the Endangered Species Act.

"The determination of whether or not to list will be made on the basis of the wild, naturally producing fish because that is what the ESA (Endangered Species Act) says you look at," said Brian Gorman at Seattle.

The federal agency sent a draft policy to state and tribal fish agencies Monday outlining how fish runs will be listed when hatchery runs are healthy, but wild runs considered to be part of the same population are struggling.

The proposed policy is in response to last year's ruling by U.S. District Judge Michael Hogan at Eugene, Ore., who said the federal fish agency erred when it included hatchery and wild coho salmon in the same population, known as an evolutionary significant unit in fisheries jargon, but then listed only the wild portion of that population.

Although the court ruling specifically applied to Oregon coastal coho, it sent reverberations throughout the Northwest because almost every listing of salmon and steelhead populations on the West Coast was prepared in a similar manner.

Of the 26 populations of listed salmon and steelhead, 24 had a hatchery component in the run. Some of the listings included only wild fish and not hatchery fish, some included both wild and hatchery fish, and others included all of the wild fish and only some of the hatchery fish.

If the policy is adopted, such distinctions will not be made in the future. All of the fish will be listed or none of them will be listed.

But Gorman said the new policy would probably not take protections away from weak wild runs because their hatchery cousins are strong.

"The key word in all of this is self-sustaining," said Gorman. "The fish that the ESA looks to for some kind of protection need to be self- sustaining populations and they need to be in their natural habitat, and that leaves out hatchery fish for that kind of consideration."

The agency is conducting a review on the 24 listed runs the ruling effects, but it is not expected to be completed until the new policy is in place.

In Idaho, some hatchery spring chinook -- such as a portion of those produced at the Sawtooth National Fish Hatchery near Stanley in the upper Salmon River basin -- are listed as threatened. But those produced at Dworshak National Fish Hatchery at Ahsahka and the Rapid River Hatchery near Riggins are not listed.

All three of the hatchery runs are included in the Snake River chinook evolutionary significant unit. The same is true of many of the state's hatchery steelhead runs.

The proposed policy could list them all, making it more difficult to hold fishing seasons on the hatchery portion, but not impossible. They would first have to receive clearance from the federal fisheries service.

For example, on the Imnaha River in Oregon both hatchery and wild chinook are listed as threatened. But for the past two years, Oregon in conjunction with the Nez Perce Tribe has been allowed to hold a fishing season that targets only hatchery chinook.

The draft policy attempts to wiggle around Hogan's ruling without changing the status quo, according to those who brought the suit.

"They are playing word games and shell games," said Russ Brooks, the Pacific Legal Foundation attorney who challenged the Oregon coastal coho listing. "They are still violating the ESA."

Brooks said the agency will still make a distinction between wild and hatchery fish if the proposed policy is adopted.

"They are only going to evaluate wild fish and not count hatchery fish in the review, so they are still making an illegal distinction. What they are doing is evaluating apples and listing oranges."

Brooks does not buy the agency's interpretation of the Endangered Species Act that says the only fish that should be counted when making a listing decision are those that spawn in the wild.

"They are failing to recognize hatchery fish spend only a brief period of their fish lives in the hatchery," he said, "and then are released into the wild and they depend on the natural ecosystem just like the wild fish do. They swim side by side in the same stream, they live in the same ocean. Obviously they depend upon the same ecosystem."

If the policy is adopted as it is now written, Brooks said it will be ripe for legal challenge.

"As long as they consider wild fish and hatchery fish the same species they are just going to have to treat them the same at each step in the listing process."

Officials at the Idaho Department of Fish and Game are still evaluating the draft policy and declined to comment. Nez Perce Tribe fisheries officials were attending a retreat Thursday and could not be reached for comment.

Federal fisheries officials are taking comments from state and tribal agencies through Aug. 16. Officials at the federal agency will then tweak the policy based on the comments and release it for public review and further comments..