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Ninth Circuit Dismisses Appeal of Hogan Decision by Bill Rudolph NW Fishletter, February 26, 2004

The Ninth Circuit Court has dismissed an appeal by environmental and fishing groups of a 2001 ruling (Alsea Valley Alliance v. NMFS) by Oregon District Court judge Michael Hogan who tossed the ESA listing for the state's coastal coho stock. Hogan said the federal government failed to offer the hatchery component of that coho population the same protection given to the wild component of the ESU [Evolutionarily Significant Unit] and that was illegal because the hatchery stock had been included in the ESU.

A three-judge panel from the Ninth Circuit ruled Feb. 24 that since NOAA Fisheries was already re-writing its policy in response to the district court decision, there was no "final decision" yet to appeal, therefore the Ninth Circuit did not have jurisdiction. They said the Hogan ruling doesn't mean the coastal coho are off the threatened species list, but that it prohibits the enforcement of the listing decision.

Plaintiffs, represented by the Pacific Legal Foundation, were buoyed by the results, even though the panel sidestepped a decision on the merits of the case, said PLF attorney Russell Brooks. The plaintiffs have maintained that the hatchery and wild components of the run were genetically indistinguishable. With hatchery numbers added to the wild run, they said the coastal coho were not in danger of extinction.

Brooks pointed out that the court dissolved the stay of Hogan's decision that has been in effect since the appeal began. This means that the coastal coho population is not currently under ESA protection, which could have major repercussions for timber harvest in federal forests in the state's coastal forests. But the coho are still listed for protection under Oregon law, which comes into play when state lands are affected.

Earthjustice attorney Kristen Boyles, who represented the Oregon Natural Resources Council and other conservation and fishing groups that intervened after Hogan's 2001 ruling, said the court's "non-decision" handed the fate of threatened salmon back to agency scientists, who, "have always recognized the differences between hatchery and wild salmon."

In the meantime, Brooks said his foundation will fire up more lawsuits, going back to Hogan's court to use his ruling to throw out the listing of Klamath River coho and file a "notice of supplemental authority" in Washington DC District Court where Northwest farm groups and others sued the feds (Common Sense Salmon Recovery v. NMFS) over the failure to include hatchery fish when considering the plight of Puget Sound chinook. Parties in that suit have already been waiting more than a year for the judge in that case to rule.

NOAA Fisheries regional administrator Bob Lohn had promised the region a revised ESA hatchery policy by last fall that would be used as a tool in the status update for listed Northwest stocks. A draft policy was shopped out for comment by states and tribes, but has been quietly shelved.

Since then, the agency has debated internally over a final product, with regional and DC NOAA Fisheries policymakers reportedly at odds with each other and the agency's own scientists.

Brooks said that in places like Puget Sound, hatchery and wild fish have been interbreeding so long that there are no truly "wild" fish left.

"NMFS appears to need a tutorial on ESA compliance," Brooks said. "The Ninth Circuit just upheld a decision containing an arithmetic lesson saying, 'count all the fish.'"

But wild fish advocates say that such interbreeding can introduce disease into wild populations and change the genetic makeup of wild stocks. They also say hatchery fish compete with wild fish for food in streams.

However, new federal policy could take the Hogan decision into account and still protect the naturally spawning component of many runs by simply delineating the hatchery portion as a "distinct population segment," said the panel of Niners, who noted "a more plausible route to the natural-only listing would be to have the Service [NMFS] reformulate its criteria for determining which groups of salmon constitute DSPs. In addition, nothing prevents the Service from forging an entirely new set of rules from scratch."