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Reaction Ranges from Cautious Optimism to Lawsuit Threats by Mike O'Bryant Columbia Basin Bulletin - May 28, 2004

The reaction to the anticipated draft NOAA Fisheries Hatchery Policy began long before the official announcement this morning at 10 a.m. and ranges from cautious optimism to immediate threats of lawsuits.

One organization that has been in the thick of the debate about using hatchery fish in determining Endangered Species Act (ESA) listings is already planning to file its intent to sue as early as next week.

Conservationists worry the new policy will open the way to delistings in the future.

At the other end of the argument, the Pacific Legal Foundation (PLF), which won the Alsea decision in U.S. District Court in Oregon that spurred NOAA to revamp its policy, along with the Building Industry Association of Washington (BIAW), are promising to take the policy back to court.

Only tribes, which think the recognition that some hatchery populations can be instrumental to salmon recovery is long overdue, along with states are cautiously optimistic.

"It's an end-run around the Alsea decision," said Tim Harris of the BIAW. "While there is some good language in the policy, it keeps all the species listed. Absolutely, when it becomes a final rule, we definitely will sue."

The draft hatchery policy addresses the role of hatchery fish in listing and delisting decisions under the ESA, according to NOAA's draft Federal Register notice, and would replace the interim hatchery policy that has been in place since 1993. That policy needs to be changed, the notice said, due to results of scientific research and due to the legal implications in the U.S. District Court in Oregon in September 2001, finding that NOAA Fisheries had improperly made a distinction under the ESA that excluded hatchery fish when determining the Oregon Coast coho listing.

While the draft policy relists 27 species of salmon and steelhead, conservation groups worry that it also leaves open the door to delist those same species by counting hatchery fish in future reviews. NOAA, in its announcement this morning, said it would reopen listing determinations for the Oregon Coast coho ESU and the Middle Columbia River steelhead ESU.

"We are happy to see that the administration supports the need to retain current protections for wild salmon and steelhead -- but the draft hatchery policy still spells trouble for healthy rivers, clean water, and wild salmon," said Rob Masonis, Northwest regional director of American Rivers. "The draft policy is worrisome because it opens the door for future elimination of Endangered Species Act protections for wild salmon and steelhead by counting hatchery fish the same as wild fish."

"The administration's draft policy is another example in a disturbing trend of appeasing industry and development interests by defying science and ignoring the economic and quality of life benefits provided by healthy rivers and wild salmon."

The PLF hasn't been appeased at all, according to Russell Brooks, attorney for the group. But he too believes that the draft policy and the decision to relist the fish are political and promises to sue the federal government if the policy is not changed.

"Clearly, this was a political decision in which the Bush Administration is pandering to the liberal environmentalists in Oregon and Washington in an election year," said Brooks. "But, that's not going to do him any good because they won't vote for him anyway."

The NOAA policy is scheduled for a 90 day public review process. However, Brooks said that if the final rule doesn't look far different than the draft policy, his group would sue. He went so far as to say he would likely send the fisheries agency a 60 days notice of intent to sue next week "to put the government on notice that if you stick with this, you will be back in court."

"I would simply look forward to taking them back to federal court and suing them again," Brooks said. "We've already won once and I'm confident we'd win again because nothing has changed."

At the center position in the debate are Northwest tribes, which have proposed hatchery reforms that utilize hatchery supplementation for over 10 years. They point to successes in the Umatilla River. Charles Hudson of the Columbia River Inter-tribal Fish Commission said the tribes are "cautiously optimistic" about the announcement.

"We see some great opportunities that the policy identifies valuable genetic resources contained in some hatchery populations," Hudson said. "There has been great value in some hatchery populations that has been ignored too long."

He added that hatchery reform is not all that is needed. "We also need an aggressive ecosystem strategy," Hudson said, adding that NOAA had built a firewall between hatchery fish and wild fish. "We're happy that firewall may be coming down. At first blush, we think NOAA has drafted a fairly thoughtful policy that matches tribal policy to a good degree."

That has Bill Bakke, Executive Director of the Native Fish Society, and Kurt Beardslee, Washington Trout's Executive Director, worried.

"The foundation of NOAA's new policy, that hatchery salmon are capable of contributing to the recovery of ESA-listed wild populations, is completely unproven," they wrote. "While hatcheries can produce fish for harvest, not one hatchery program designed specifically to supplement and recover a wild population has any record of proven success, and the preliminary results from these programs are far from encouraging."

"This is not based in science, and it's bad public policy," Beardslee said. "At best, it is irresponsibly premature to even partially base a salmon-recovery strategy on such an unproven and risky approach. At worst, it's a cynical attempt to circumvent true recovery, for the benefit of particular stakeholders."

"Rather than listening to the agency's own scientists and developing a policy that is based on science and works on the ground, they've decided to do what was politically expedient," said Liz Hamilton, Executive Director of the NW Sportfishing Industry Association. "This is just another way for the agency to avoid doing the difficult work -- the protection and restoration of clean healthy rivers."

She, along with other fishing groups, said the policy could have dangerous consequences for salmon-dependent communities.

Jeff Curtis of Trout Unlimited said the policy blurs the distinctions between wild and hatchery salmon and could lead to harvest of listed species, loss of habitat and other problems that could detract from fish recovery.

"We hope that a year from now we're conducting the real work of salmon recovery, and not fighting these same battles all over again," added Jeff Curtis of Trout Unlimited.

While saying that the policy could be used as an excuse to replace habitat with more hatcheries, Glenn Spain of the Pacific Coast Federation of Fishermen's Associations found a positive note in the policy. One is that the policy would judge individual hatcheries on their own merit, he said, "rather than a blanket assessment of all hatcheries as a system."

"Pumping out more hatchery fish and calling it any kind of step toward 'recovery' flies in the face of 100 years of conservation biology as well as common sense," Spain said. "It shifts the future conservation burden from industries and dams which have systematically destroyed salmon habitat for profit to the people who have historically been the victims of this habitat loss - fishing businesses and fishing-dependent communities."

Bob Nichols of Washington Governor Gary Locke's office said that at first blush the policy is positive, but he didn't want to speculate further until he had a chance to review the documents released by NOAA this morning.

Jim Myron, Natural Resources advisor to Oregon Governor Ted Kulongoski, said that it was good that NOAA decided to continue the listings "until this is all sorted out," but he was concerned about NOAA's inclusion of 162 artificial production programs in its policy.

"I can't imagine that all of them are conservation based hatcheries," he said. "If they are going to be listing hatchery fish, then they need a biological justification that says those are assisting in recovery of wild fish. If not, it's a mistake to include them."

Related Sites:
NOAA Fisheries Hatchery Policy and related documents: www.nwr.noaa.gov/AlseaResponse/20040528/index.html

Related Pages:
Shift on Salmon Reignites Fight on Species Law by Timothy Egan, The New York Times, 5/9/4
Hatchery Salmon to Count as Wildlife by Blaine Harden, The Washington Post, 4/29/4