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Shift on Salmon Reignites Fight on Species Law by Timothy Egan New York Times, May 9, 2004

SEATTLE -- Three years ago, Mark C. Rutzick was the timber industry's top lawyer trying to overturn fish and wildlife protections that loggers viewed as overly restrictive. Back then, he outlined to his clients a new strategy for dealing with diminishing salmon runs. By counting hatchery fish along with wild salmon, the government would help the timber industry by getting salmon off the endangered species list, Mr. Rutzick wrote.

Now, as a high-ranking political appointee in the Bush administration who is a legal adviser to the National Marine Fisheries Service, Mr. Rutzick is helping to shape government policy on endangered Pacific salmon. And in an abrupt change, the Bush administration has decided for the first time to consider counting fish raised in hatcheries when determining if some species are going extinct.

The new plan, which officials have said is expected to be formally announced at the end of the month, closely follows the position that Mr. Rutzick advocated when he represented the timber industry.

Mr. Rutzick, a Portland lawyer who was suggested for the fisheries job by Senator Gordon H. Smith, Republican of Oregon, would not comment on his role in shaping government salmon policy. Officials at the fisheries service say Mr. Rutzick was part of a working group that shaped the new plan, but would not give further details.

The policy shift has caused a furor among some members of the scientific community and has touched off a fresh battle over what may be the nation's most powerful environmental law.

To most biologists, salmon that are born and raised in a cement tank are no replacement for wild fish, even if they share a common genetic makeup. The new approach, which was contained in a single-page draft, dated March 25 and leaked to reporters last month, ignores the findings of the Bush administration's own panel of outside scientific experts, as well as long-held views within the fisheries service.

These biologists say that including hatchery salmon in the calculation for when a fish can be listed for protection under the Endangered Species Act is akin to counting animals in a zoo. By this reasoning, river or forest habitats of a rare species will never be protected, so long as the animal can be reproduced by artificial means.

"This is a direct political decision, made by political people to go against the science," said Dr. Ransom A. Myers, a fisheries biologist at Dalhousie University in Halifax, who was on the six-member panel named by the fisheries service to guide salmon policy. The panel's recommendations were rejected for a policy more favorable to industry groups fighting land restrictions, Dr. Myers and other panel members have said.

Bush administration officials say they are boxed in by a court decision that forces them to include hatchery fish in deciding the fate of a particular run of salmon. They say the scientists inside and outside the agency have overstepped their expertise, and are trying to write policy.

"You have an interaction between science and the law here," said Jim Lecky, a government adviser who speaks for the fisheries service, which is a branch of the Commerce Department. "We don't treat hatchery fish the same as wild salmon. But we do have to consider them."

"I think you have a tremendous internal debate" within the fisheries agency, said Russ Brooks, a lawyer for the Pacific Legal Foundation, which successfully sued the government to force a reconsideration of how it uses hatchery fish. The foundation is financed by developers, timber and agricultural interests angered by what they see as regulatory zealotry.

"Initially, the environmental side was winning out," Mr. Brooks said. "And now you have the other side coming to the fore."

Mr. Brooks said he met with Mr. Rutzick in Washington in late March, about the same time the new policy memorandum was drafted.

Asked about Mr. Rutzick's role in shaping the plan, Mr. Brooks said, "Well, he's very familiar with the issues and from what I understand he has a lot of influence."

As a lawyer for the timber industry, Mr. Rutzick wrote a memorandum in November 2001 praising the use of hatchery fish to restore overall salmon runs, after the court decision forced a rethinking of policy. The old approach, of trying to protect the habitat of wild species, was not working, he wrote. He favored a new approach, directing the fisheries service "to use hatchery fish more aggressively to restore salmon runs." This would "benefit timber-dependent communities and industries," he wrote, and it would help salmon.

"Experts think this will bring the runs back sooner and in greater numbers," he wrote. Asked to comment on Mr. Rutzick's statement about the use of artificially created fish as a way to quickly restore salmon runs, Dr. Myers said, "No credible scientist believes this."

With more than a hundred hatcheries in the Northwest, fish managers have been able to turn out millions of salmon in concrete pools and to release them into rivers. The fish return to their hatchery birthing grounds to spawn and are stripped of their eggs, which are used to replenish the fish population. But after more than a century of human-induced production, wild salmon runs have diminished, with 26 species listed as threatened or endangered with becoming extinct.

To protect the habitat of these wild fish — which many biologists say are superior to hatchery fish, with more genetic diversity — the government has put restrictions on logging and development along streams from Southern California to Washington. Private property groups have sued to overturn these protections, saying it costs them millions of dollars.

In the 2000 election, property rights, agriculture and timber interest groups gave nearly $1 million to the Bush campaign. And although the laws that protect fish and forests have not been changed, the way they are enforced has been. Critics say the administration conducts its land policy by settling lawsuits with groups that oppose environmental laws.

Federal officials agree that the change in course is a response to a successful lawsuit filed by property rights groups. In that suit, decided in September 2001, a federal judge in Oregon, Michael R. Hogan, said the government method of treating hatchery and wild fish differently was unlawful.

But the judge did not tell fisheries officials how to determine if a species was endangered. He ordered the fisheries agency to "consider the best available scientific evidence" in coming up with a new policy.

The fisheries service hired an outside panel to guide it. Among the responsibilities of the scientists, according to the fisheries service guidelines, was to "ensure that well accepted and consistent ecological evolutionary principles form the basis for all recovery efforts."

Inside the fisheries service, the same approach was taken. In a policy draft issued 10 months after the court decision, the fisheries service still indicated that counting hatchery fish was no way to judge the health of wild salmon.

The law, they wrote in July 2002, requires the service to list a species as endangered or threatened "based on whether they are likely to be self-sustaining in their native ecosystem."

Mr. Rutzick was appointed early last year, and his duties included shaping policy on the fate of the 26 threatened or endangered salmon runs. It is the biggest legal issue facing the fisheries service and affects millions of acres of land and rivers along the coast.

When the outside experts reported their findings, they were censored, they said. They went public and had their conclusions published in the journal Science.

"We should not open the legal door to maintaining salmon only in hatcheries," the panel's chairman, Dr. Robert Paine, an ecologist at the University of Washington, said in a statement in late March. "The science is clear and unambiguous — as they are currently operated, hatcheries and hatchery fish cannot protect wild stocks."

Some conservation groups, which have long looked on the fisheries service as an ally, say they feel betrayed by the proposed change.

"The Endangered Species Act doesn't say: protect museum pieces in a zoo," said Chris Wood, vice president for conservation at Trout Unlimited. "Hatchery fish are genetically inferior to wild fish. Find me the peer review paper that says otherwise."

Mr. Brooks, the lawyer for the Pacific Legal Foundation, said environmentalists were overreacting.

"The sky is not falling," he said. "The devil is still in the details. And this is not to say that they will do away with everything, because there will still be very stringent restrictions by the state."