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Suit Over Fisheries Decision Looms by Erik Robinson, Staff Writer The Columbian, May 29, 2004

As expected, federal fishery managers announced Friday that a new policy equating wild fish to their hatchery-raised cousins will not strip Endangered Species Act protection from any listed salmon or steelhead.

And, also as expected, a property rights organization vowed to challenge that decision in court.

Russell Brooks, an attorney with the Pacific Legal Foundation in Seattle, said his group intends to haul the Bush administration back before the same judge whose landmark ruling 21/2 years ago prompted the government to reassess the role of hatcheries in the first place.

U.S. District Judge Michael Hogan, ruling in Eugene, Ore., in a case brought by Brooks' group, ruled the government erred by lumping hatchery and naturally spawning Oregon coastal coho salmon together in a single group, then giving threatened species protection only to the wild fish.

The Bush administration declined to appeal that decision, instead vowing to reassess all 26 stocks of imperiled salmon and steelhead in light of Hogan's decision.

Home builders, irrigators and energy companies all affected by various restrictions designed to protect wild fish had expected relief.

Instead, the administration not only declined to strip protection from the 26 currently listed stocks, it added a species to the list: lower Columbia River coho salmon.

"You've got a lot of people that voted for Bush the first time that are extremely disillusioned right now," Brooks said. "They feel betrayed, and they don't feel he's in touch with their concerns."

Representatives of some environmental and property rights groups seemed to agree on at least one aspect of Friday's announcement: Both sides say it will open the door for the lawsuit Brooks vowed he will file as soon as the administration's new policy takes effect.

The proposed hatchery policy and stock reassessment will be published in the Federal Register early next week, followed by 90 days for public comment.

Brooks said the lawsuit will demand that the government de-list salmon bolstered by ample numbers of hatchery-raised fish.

"It does create some clear leeway for industry to prevail and for habitat protections to be lost," said Kirstin Stade, conservation director of the environmental group Gifford Pinchot Task Force.

Bob Lohn, regional administrator for the National Marine Fisheries Service, made it clear during a press conference in Seattle on Friday that the Bush administration has no intention of stripping endangered-species status from wild stocks hanging on by a thread.

"Numbers alone, or having all your fish in hatcheries, will not be acceptable under this policy," he said.

When considering endangered-species status of salmon stocks, Lohn said the agency also will consider a species' ability to reproduce itself in the wild, its genetic diversity and a geographical distribution wide enough to guarantee its existence.

Repeatedly, Lohn emphasized that the administration intends to protect creatures reproducing on their own in the wild rather than simply relying on hatcheries to pump out millions of smolts indefinitely.

"We're not saying that all these fish are contributing equally," he said.

Even so, conservation representatives and scientists who advised NMFS in the past questioned whether Lohn's stated intentions will stand up to legal scrutiny. By counting hatchery-raised fish alongside those spawned in the wild, they say the government may have effectively painted itself into a corner from a legal point of view.

"In the future, you actually could de-list (species) based on their abundance standard," said David Moryc, with American Rivers in Portland. "It leaves open the door for mischief in the future."

In the meantime, fishing groups worry the policy will lead to new harvest restrictions. They say NMFS could find itself in the ironic predicament of "protecting" an endangered hatchery-raised fish that was raised to be caught, killed and filleted.

"The implication for the fishing industry is more restrictions, not less," said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen's Associations. "And those are precisely the people who didn't cause the problem."

Administration officials say they are focused on continuing to make habitat improvements. Conrad Lautenbacher, the commerce undersecretary who oversees the fisheries service, announced a $25.8 million federal grant for the Washington Salmon Recovery Funding Board to improve stream habitat.

He called it the latest installation of funding designed to emphasize President Bush's interest in restoring "naturally spawning salmon and the ecosystems on which they depend."

Update

Previously: U.S. District Judge Michael Hogan, deciding a lawsuit brought by a property rights group, ruled in September 2001 that the National Marine Fisheries Service erred in lumping hatchery-raised and wild Oregon coastal coho salmon into a single group, then giving Endangered Species Act protection only to the wild fish.

What's new: The Bush administration on Friday released a long-awaited revision of its hatchery policy to comply with Hogan's ruling. It also reassessed all ESA-listed stocks of West Coast salmon and steelhead in light of the new policy's edict to count wild and hatchery-raised fish together.

What's next: Citizens will have 90 days to comment on the new policy and stock reassessment once they are published in the Federal Register next week.