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Only Wild Fish Matter in 'Endangered' Count, Judge Rules by Felicity Barringer New York Times, June 14, 2007

SAN FRANCISCO - A federal district judge in Seattle on Wednesday nullified a Bush administration policy that counts hatchery fish along with wild fish when making decisions about which species should be protected under the Endangered Species Act.

This counting method, the judge, John C. Coughenour, wrote, "departs from the law's central purpose, which is to promote and conserve naturally self-sustaining populations."

Judge Coughenour also noted that six years ago, a federal judge in Eugene, Ore., endorsed the opposite interpretation and called on the federal government to count genetically similar hatchery fish with their wild relatives. In his order Wednesday, Judge Coughenour indicated he would welcome the "happy result" of a review by the United States Court of Appeals for the Ninth Circuit to settle the matter.

A 2004 decision by the National Marine Fisheries Service, which protects migrating fish that spend part of their lives in rivers and part in the ocean, was roundly condemned by environmental groups, especially advocates for wild salmon, as a fundamental distortion of the endangered-species law.

In the 1990s, when most of the 27 Northwestern salmon species currently protected under the act were being evaluated, the fisheries service made its decisions on the status of the naturally spawning fish. Depending on how many generations a fish species have spent in the hatchery and what other stocks they have mingled with, they can be genetically identical to the wild stocks or significantly different.

Several environmental groups, including Trout Unlimited, American Rivers and the Sierra Club, filed suit after one species of salmon, the Upper Columbia steelhead, was downgraded to threatened from endangered under the new policy.

The judge agreed with their major points. To commingle the numbers of hatchery and wild populations when deciding on protections, he wrote, "is, in fact, contrary to the best available scientific evidence."

"A healthy hatchery population is not necessarily an indication of a healthy natural population," he said.

Jan Hasselman, a lawyer with Earthjustice, which handled the case for the other groups, said in a statement Wednesday, "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams."

Kaitlin Lovell of Trout Unlimited said in the same statement that "we should strengthen legal protections and accountability for wild salmon, not weaken them."

D. Robert Lohn, regional administrator of the fisheries service's Northwest office, said in an interview that his office's policy was "managing for and protecting the naturally spawning fish."

"To the extent that we can use hatchery fish to assure the survival or help rebuild the populations, we would take them into consideration," Mr. Lohn said.

Sonya D. Jones, a lawyer with the Pacific Legal Foundation, a property-rights group that has for years pressed the government to count hatchery stocks when determining whether a salmon species should be protected, said the group believed that Wednesday's decision and the 2001 ruling, by Judge Michael R. Hogan, were "in direct contrast" and that it expected to appeal the latest one.