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Judge Upholds Protections for Wild Salmon
Earthjustice Press Release
August 15, 2007

Developers and farm groups fail to convince judge that hatchery-bred salmon are legally identical to wild salmon

Fish Hatchery

OREGON –A federal judge has rejected a broad challenge to the protection of wild salmon as endangered species. The judge upheld a federal policy of using different standards to determine whether or not to protect hatchery-bred and wild salmon under the Endangered Species Act. The decision is the third court decision in recent months confirming that wild Pacific salmon should be protected under federal law.

U.S. District Judge Michael Hogan rejected all of the arguments of the anti-environment group Pacific Legal Foundation which represents developers and farm groups. PLF argued that the National Marine Fisheries Service must make ESA salmon listing decisions based simply on the numbers of hatchery fish. PLF asked the court to remove 16 separate populations of salmon from the list of endangered species based on the prevalence of hatchery fish. The 16 stocks range from the Canadian border, through the Columbia basin, to the central California coast. Judge Hogan found nothing in the law to support the argument that wild and hatchery salmon have to be treated identically when deciding whether to protect wild salmon.

The ruling is consistent with another decision, issued in June by a U.S. district judge in Seattle, that set aside the Bush administration’s policy of counting hatchery and wild fish together in Endangered Species Act assessments.

“Salmon and people need clean water, swimmable streams, and healthy habitat. We all win when we protect and recover wild salmon and their habitat,” said Jan Hasselman, an attorney represented fishing and conservation groups who sought to retain Endangered Species Act protection for vulnerable salmon and steelhead populations. “Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams.”

The ESA requires NMFS to make listing decisions on the basis of the best science. NMFS’s scientific advisors and experts unanimously concluded that it would be “biologically indefensible” to eliminate ESA protection for threatened and endangered salmon because of the abundance of fish raised by humans in hatcheries.

The science revealed that hatchery and wild salmon are different in important ways and that many hatcheries have helped push wild salmon closer to extinction. PLF, however, asserted that NMFS was legally required to ignore these issues and simply count the total numbers of fish in making ESA listing decisions.

“People in the Northwest want salmon in their rivers and streams for generations to come. We should strengthen legal protections and accountability for wild salmon, not weaken them,” said Kaitlin Lovell, salmon policy coordinator for Trout Unlimited.

In 2001, Judge Hogan set aside the listing of Oregon coast coho salmon based on a related but different issue. In that case, NMFS had included hatchery fish in the definition of the “species” but listed only the wild component. Judge Hogan ruled that the ESA does not allow NMFS to list only a portion of a designated species.

In response, NMFS redesignated the species to include wild and closely related hatchery fish, and listed both. In this new case, PLF sought to over-extend Judge Hogan’s previous, narrow legal ruling to erase the boundaries between hatchery and wild fish completely.

“The presence of hatchery fish should never be an excuse to reduce protections for wild salmon and their habitat. Both wild and hatchery salmon need healthy rivers to survive. Our ultimate goal must be the return of healthy wild fish stocks so we eventually can eliminate our dependence on hatcheries,” said Jim Lichatowich, scientist and author of the book Salmon without Rivers.

The groups intervening to protect the wild salmon are Trout Unlimited, Pacific Coast Federation of Fishermens’ Associations, Institute for Fisheries Resources, American Rivers, Oregon Wild, Klamath Forest Alliance, Northcoast Environmental Center, National Center for Conservation Science and Policy, Pacific Rivers Council and Sierra Club. They were represented by attorneys Jan Hasselman and Shaun Goho of Earthjustice. The case name is Alsea Valley Alliance v. Lautenbacher, No. 06-6093-HO (D. Or.).

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.

Wild and Hatchery Salmon Not Equal
By Robert McClure, Seattle PI
August 15, 2007

Property-rights advocates fighting government regulations to protect salmon are reeling from their second major legal defeat of the summer. The case affects both Puget Sound chinook and salmon runs across the Pacific Northwest.

Their latest setback came in a ruling by U.S. District Judge Michael Hogan -- the same judge whose 2001 ruling in favor of builders, farmers and others trying to limit federal regulation fueled a wave of litigation against the government.

Property-rights attorneys have long said Hogan's decision in the previous case meant the National Marine Fisheries Service had to count hatchery-bred fish -- not just those spawned in the wild -- toward recovery goals under the Endangered Species Act.

Because hatchery-bred fish are so plentiful, they reasoned, the legal protections extended to wild fish should be relaxed.

Not necessarily, Hogan ruled late Tuesday in Eugene, Ore. He said his previous ruling "does not require NMFS to treat natural populations and hatchery stocks equally."

"We're horribly disappointed," said Sonya Jones, the Seattle-area Pacific Legal Foundation lawyer arguing the case for property-rights advocates.

"When considering a population for (protection) such as the Puget Sound chinook," she argued, "you've got to count all the Puget Sound chinook -- not just the hatchery or naturally spawning Puget Sound chinook."

Hogan's ruling comes on the heels of a June decision by Seattle U.S. District Judge John Coughenour, who went further than Hogan, saying the Endangered Species Act actually prevents federal officials from counting hatchery-spawned steelhead alongside wild fish.

Scientific studies show that hatchery-bred fish can initially overwhelm and outcompete wild-spawned salmon. Still, the wild ones are more successful at going to the ocean and returning to reproduce, scientists say.

The Bush administration chose not to appeal Hogan's original 2001 ruling -- provoking protests by environmentalists. But Bush officials and government biologists wrote a plan to discourage hatchery practices that harm wild fish. It encourages practices that supplement wild populations without tearing them down.

That allows the hatchery-bred fish to be caught and eaten when there are enough extras, even when wild fish remain protected.

Environmentalists proclaimed a major victory.

"This whole six-year flap is over. They took their best shot and didn't even get close," said Jan Hasselman, a Seattle lawyer with the Earthjustice firm who represented environmentalists. "Let's move on to restoring fish habitat and bringing back harvestable numbers of salmon."

The legal arguments will continue, though. Jones already appealed Coughenour's ruling and said Wednesday that she would appeal Hogan's new ruling, too.

In addition, a third case affecting steelhead across the Northwest will be argued next week in California.

Brian Gorman, a spokesman for the federal fisheries service, said Hogan's new ruling shows that the property-rights advocates have oversimplified the process of protecting salmon under the Endangered Species Act.

"As many of our biologists will tell you, making a (fish-protection) decision is far more complicated than just counting the fish," Gorman said.

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.