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Pacific Legal Foundation Challenges Steelhead Listings by Barry Espenson Columbia Basin Bulletin - March 19, 2004

Upper Willamette River and Lower and Middle Columbia River steelhead listings are the latest legal targets of land and water user groups who say the federal government illegally split up fish populations in determining which deserve Endangered Species Act protection.

The Pacific Legal Foundation says that, when looked at as a whole, the populations are not "threatened."

The legal organization filed a lawsuit Thursday in the Yakima, Wash., U.S. District Court asking that the three listings be invalidated. PLF is representing a large "alliance" of plaintiffs in the case, including the Washington State Grange, Oregon State Grange, Washington Farm Bureau, Alsea Valley Alliance, Okanogan County, Kittitas County, and the Building Industry Association of Washington.

"These illegal steelhead listings have wreaked havoc in Washington and Oregon communities, seriously impeding private land use," said Russell Brooks, PLF managing attorney. "For too long, Washington and Oregon residents have paid a high price to protect fish that don't need protection."

PLF argues that the NOAA Fisheries (formerly known as the National Marine Fisheries Service) did not consider all steelhead when listing the species as threatened. Members of the steelhead species, O.mykiss, include steelhead that are born in the wild and migrate to the ocean from freshwater, hatchery steelhead that also migrate to the ocean, and resident steelhead, which are known as rainbow trout. The rainbows spend their entire lives in freshwater.

The listings include only the migratory steelhead born in the wild as threatened. The lawsuit contends that decision was made despite the fact that the agency admits that all of the fish are the same species and interbreed.

The Lower Columbia "evolutionarily significant unit" of steelhead was listed in 1997 and includes all naturally spawned steelhead and their progeny in streams and tributaries of the Columbia River between the Cowlitz and Wind rivers. The Upper Willamette and Middle Columbia ESUs were listed in 1999, again comprised of naturally spawned populations. The Mid-Columbia ESU includes steelhead spawning in Columbia River Basin above the Winder River in Washington and the Hood River in Oregon upstream to and including the Yakima River in Washington.

NOAA Fisheries has said it is addressing the resident vs. migratory steelhead issue, as well as the hatchery vs. wild issue, through the status reviews begun in February of 2002. The process of assessing the status of 25 West Coast salmon and steelhead ESU's was initiated in response to a U.S. District decision in September 2001 that called illegal NOAA's Oregon coast coho listing. In Alsea Valley Alliance v. Evans, Judge Michael Hogan ruled that the fishery agency made an improper distinction under the ESA when it excluded hatchery fish from listing protection even though they had been judged a part of the same coho ESE as the naturally spawned fish.

The Ninth Circuit Court of Appeals last week short-circuited an appeal of the Hogan decision, saying it did not have jurisdiction until after the review of the coho listing is complete.

The NOAA status review process is expected to culminate this year with updated listing determinations. The first set -- for eight ESUs -- is due March 31.

"By affirming Alsea, the Ninth Circuit confirmed what PLF has argued for years. Government can't cherry-pick which member of a species it includes or excludes in a listing. It has to follow the law and sound science," said Brooks, who successfully litigated the Alsea case.

The filing this week seeks "invalidation of the current listings of O. mykiss in the Lower Columbia River ESU, the Middle Columbia River ESU, and the Upper Willamette ESU, and inclusion of hatchery and resident O. mykiss in a reevaluation of the listings."

PLF contends in its lawsuit that one individual fish may become a steelhead, while its sibling from the same stream may remain a rainbow trout. And two steelhead may spawn and produce offspring that remain in freshwater to become rainbow trout and vice versa.

"Thus, on nature's whim, any given O. mykiss may become a steelhead, while its O. mykiss kin from the very same stream may remain a rainbow trout. Likewise, hatchery O. mykiss inhabit the same streams and often interbreed with naturally spawning O. mykiss," the complaint says. "Hatchery and naturally spawning O. mykiss are also scientifically classified as the same species and, in most cases, considered by NMFS to exist in the same populations."

"Defendants' failure to count resident O. mykiss in the decision to list migratory O. mykiss in the ESUs violates the ESA by distinguishing a species on a basis not provided for under the ESA," the complaint says. "No provision within the ESA contemplates listing some members of a species population while excluding other members of the same species population existing in the same habitat."

The PLF says "unnecessary and illegal listings have for years crippled critical parts of Washington's and Oregon's economies."

"The plaintiffs in this case are over 100,000 farmers, ranchers, community leaders, and citizens, most of whom provide food and agricultural products for the entire nation," said Brooks. "When the livelihoods of so many people and a critical sector of the American economy hang in the balance, the government should be working overtime to follow the law, not finding ways to subvert it."

The complaint filed this week says that "NMFS's determination to list only certain members of O. mykiss causes the Alliance particularly grievous and unnecessary injuries. Requiring NMFS's full compliance with statutory obligations including consideration of legally appropriate distinct population segments including hatchery and resident O. mykiss in any future listing considerations, and utilizing hatchery and resident O. mykiss in any recovery efforts may favorably impact the conservation and recovery of O. mykiss, and will redress the Alliance's injuries by furthering the conservation and recovery of O. mykiss.

"Alliance has no plain speedy and adequate remedy at law, and absent immediate judicial intervention, Plaintiffs will suffer irreparable injury," according to the complaint.

The complaint, additional information on the Alsea decision, and a map of areas affected by the steelhead listings are available at www.pacificlegal.org.