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Judge Sides with Wild Salmon by Robert McClure Seattle Post-Intelligencer, June 13, 2007

Hatchery-bred fish can't be counted toward Endangered Species Act goals

The push by property-rights advocates to count hatchery-bred salmon toward the goals of the Endangered Species Act is misguided and runs afoul of the law, U.S. District Judge John Coughenour ruled Wednesday in Seattle.

His decision flatly rejects the idea that if enough salmon can be produced in hatcheries, there is little need to protect wild stocks. It also strikes down what environmentalists widely viewed as a Bush administration policy to appease building and agriculture interests.

The Endangered Species Act has a "central purpose of preserving and promoting self-sustaining natural populations," the judge ruled.

"Species are to be protected in the context of their habitats, until they are self-sustaining without the interference of man," Coughenour's ruling says. "Artificial propagation is a temporary measure designed to bring a species to the point where the species no longer requires the protection" of the endangered-species law.

Coughenour's ruling specifically addressed protections for steelhead, a seagoing rainbow trout, in the upper Columbia River. But it sets up a conflict on a much broader scale that is expected to affect dozens of species of salmon and other hatchery-raised fish.

Environmentalists were thrilled.

"This decision puts salmon protections on the right footing, since we need salmon in streams, and not in zoos or the equivalent of zoos," said Seattle lawyer Patti Goldman of the law firm Earthjustice, which represented environmentalists in the case. "It means we can't diminish protections for salmon based on how many you can crank out in a hatchery."

Arguing against the environmentalists was the Building Industry Association of Washington, which says restrictions on agriculture and waterfront building -- based on salmon protections -- will unnecessarily drive up costs to consumers.

The builders group maintains that hatchery-bred and wild salmon should be treated the same because they swim together in rivers and go out to sea together and then return to breed -- often with each other, a key criterion under the law.

Coughenour's 40-page ruling dismissed that argument in a single footnote.

Timothy Harris, the building lobby's general counsel, described himself as "astonished" by some of Coughenour's reasoning.

Coughenour's decision "really strains to say that habitat and the protection of naturally spawning populations are what the (law) is meant to protect, and the (law) simply doesn't say that," Harris said. "He unabashedly thumbs his nose at the law."

Under the Endangered Species Act, Harris said, an animal must first be found to be in need of protection before its habitat needs can be considered. But the ruling, by failing to count hatchery-bred fish, is "putting the cart before the horse," Harris said. "It's intellectually dishonest."

Coughenour acknowledges in his ruling that his finding is in direct contradiction to a 2001 ruling in Oregon by a different federal judge, Michael Hogan. Hogan held that salmon raised in a hatchery near the Alsea River in Oregon deserve the same legal protection as salmon that spawned naturally in a nearby creek. He said federal officials improperly refused to protect hatchery-bred fish under the Endangered Species Act.

The essence of the difference between the two rulings is this: While both judges agree that the National Marine Fisheries Service can protect both naturally spawned and hatchery-bred fish under the Endangered Species Act, Hogan said that both groups' numbers must be considered before deciding to invoke the protections of the law.

Coughenour said that only the wild stocks can be considered at that point.

After Hogan's ruling, the Fisheries Service revised its policy on procedures for protecting fish. But Coughenour said the result was "internally contradictory" and noted that federal biologists protested that its application to hatchery fish "would not be scientifically valid."

Scientists have been documenting differences in the behavior of hatchery-bred and wild salmon at least since the 1950s, and compiling evidence that the hatchery-bred fish are less able to survive in the long run.

The genetic variability of salmon runs has allowed them to survive since the time of the dinosaurs because they can adapt to changing conditions. Consider that some start life in the cool, rain-drenched creeks of the Olympic Peninsula, while others thrive among comparatively hot and arid conditions where the Snake River runs through high desert.

Property-rights advocates argue that the fish's ability to adapt to so many conditions is evidence that any particular salmon run doesn't need to be protected, since some other run could move to fill in the gaps if one disappears.

But fish scientists -- including many working at the Fisheries Service -- point out that wild fish, unlike those in hatcheries, are genetically programmed to spread their risk.

For example, wild fish usually return from the sea over a period of months to spawn. So if some are caught in a drought or a raging flood that washes away their eggs, others will return later to continue the run.

Under traditional hatchery management, the fish all tended to hatch together and were released together into the wild. One result: Predators such as birds learned to congregate at the time of the release, making the hatchery fish easy pickings.

Meanwhile, hatchery fish compete with and overwhelm wild fish. Because they are typically released before wild fish hatch, hatchery fish are larger early in life -- so they gain an advantage competing for living space and food.

Coughenour's ruling notes studies showing, among other things, higher rates of aggression and less-efficient feeding behaviors among hatchery-bred fish.

"It is clear that hatchery fish have important differences from wild fish," Coughenour ruled.

Between the poles of the environmentalists and the business interests, there is a third view: That hatcheries, if properly operated with fish whose genetics are sufficiently similar to the wild salmon and carefully controlled, could be used to supplement the wild populations and rescue them from extinction. Those interests, including Indian tribes, were not represented in the suit.

The Fisheries Service was still studying the ruling late Wednesday and, while disappointed in the result, was unprepared to comment, agency spokesman Brian Gorman said.

The case turned on the agency's decision, once it considered hatchery-bred fish, to classify the steelhead as "threatened" under the Endangered Species Act, rather than the more restrictive "endangered" label previously applied to it.

Sonya Jones of the Pacific Legal Foundation, which represented the builders group, the Washington Farm Bureau and Idaho water users, said the case would be appealed to the 9th U.S. Circuit Court of Appeals.

The environmental groups involved were Trout Unlimited, the National Wildlife Federation, the Pacific Coast Federation of Fishermen's Associations, the Institute for Fisheries Resources, Oregon Wild, the Klamath Forest Alliance, the Pacific Rivers Council, the Wild Steelhead Coalition, the Native Fish Society and the Federation of Fly Fishers.