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Slippery Salmon Science on Trial before Ninth Circuit by Russ Brooks Pacific Legal Foundation, June 2003

“Thwack! Thwack! Thwack!” That’s what small-town banker Ronald Yechout heard as he was out hunting near Philomath, Oregon back in November, 1998. He followed the noise to the banks of Fall Creek, and saw a sight he couldn’t believe: State wildlife regulators were clubbing to death thousands of migrating salmon.

Yechout’s outrage launched him on a crusade to expose the government “conservation” program that targeted hatchery salmon for extermination supposedly to somehow “help” stream-bred salmon. Eventually, under the pressure brought by Yechout and Pacific Legal Foundation, the systematic government slaughter of salmon that were born in hatcheries ended. But the larger legal controversy continues—and it had its most important appointment to date before the Ninth Circuit Court of Appeals in Portland on May 8.

A three-judge appeals panel considered a trial court ruling obtained by PLF that hatchery-born salmon cannot be ignored and only stream-bred salmon counted when determining whether coho are “endangered” and in need of special protection in the form of tough land use regulations. Although government officials claimed that their clubbing expeditions were intended to clear the way for healthier development of wild salmon, skeptics observed that by killing salmon, it was easier for bureaucrats to grab headlines—and expand their power over private property—by claiming that salmon are in decline.

Two years ago PLF brought this dispute before U.S. District Court Judge Michael Hogan in Eugene, Oregon, in a major lawsuit, Alsea Valley Alliance v. Evans. PLF argued that since hatchery-born coho are biologically identical to stream-born coho, it is fishy for the government to count only wild salmon to determine they are threatened when plentiful hatchery salmon fill the streams. The judge ruled, based on the National Marine Fisheries Service’s records, that the government cannot include the two salmon in the same biological unit and then treat them differently. At bottom the point is: If there are plenty of coho in streams and rivers, coho aren’t “endangered” under the federal Endangered Species Act, even if a lot of those fish started life in hatcheries.

In reviewing Judge Hogan’s order, the Ninth Circuit should not get reeled in by the government’s slippery pseudo-science. The fact is, for over half a century, coho salmon have thrived in the Pacific Ocean off the coast of Oregon—and they do so today in phenomenal numbers. More than 240,000 stream-bred coho returned to Oregon’s rivers in 2002, a staggering increase from the 14,000 that returned just six years ago. More than 660,000 hatchery-born coho made the trip up river last year.

Since 1952, the Fall Creek hatchery—originally started with the eggs of “wild” salmon—has produced countless generations of salmon that have, in all respects, become fully integrated with the “wild” population.

Indeed, many biologists, including a chief of the NMFS hatcheries and inland fisheries branch, agree that there probably aren’t any truly “wild” salmon left in the lower 48 states and that because of nearly 50 years of natural cohabitation, the hatchery-spawned salmon and the “wild” salmon are virtually indistinguishable. The only way to identify hatchery salmon is by the missing fin clipped by the hatchery.

Even though the clubbing has stopped, regulators can still lowball the salmon count if they’re allowed to exclude those born in hatcheries. Such manufactured pessimism gives regulators more excuses to take control of logging, farming, grazing and home building on thousands of acres of land, endangering the economy for a species that isn’t in danger.