COLUMBIA RIVER - A Seattle-based federal judge last Wednesday ordered "endangered" species protections restored for wild Upper Columbia River steelhead stocks and declared NOAA Fisheries Service's (NMFS) new hatchery listing policy contrary to the Endangered Species Act.
The decision tangles the contentious hatchery/wild issue. A 2001 opinion in Oregon's U.S. District Court of Oregon prompted a NOAA re-evaluation of how it considers hatchery-produced salmon and steelhead when deciding if a particular stock needs ESA protections. That task was completed in June 2005, as were updated listing decisions for 16 West Coast salmon stocks that took the new policy into account. Final decisions on 10 West Coast steelhead stocks and on Oregon Coast coho salmon were issued six months later.
The triggering opinion by Eugene-based Judge Michael A. Hogan said that NMFS had in 1998 violated ESA provisions by excluding hatchery fish from its Oregon Coast coho listing after including them in its "evolutionarily significant unit" for the species. Hogan said that once defined, a portion of the ESU can not be left out of the listing. He declared the listing invalid.
NOAA chose not to appeal the decision, opting instead to re-craft the policy. The new stock assessments resulted in the Oregon Coast coho being left off the list and the Upper Columbia steelhead stock being downlisted from endangered to threatened.
At least five lawsuits have been filed challenging new listings and/or the new hatchery listing policy.
"Until such time as NMFS promulgates another policy on the consideration of hatchery fish in ESA listing determinations, the Interim Hatchery Policy will be in effect," according to U.S. District Court Judge John C. Coughenour's June 13 order. He referred to a policy created by NOAA in 1993 to serve as a guide to evaluate potential roles of hatchery produced fish in listing determinations and species recovery.
"The downlisting of the Upper Columbia River steelhead ESU from endangered to threatened is set aside as contrary to the ESA. Until such time as NMFS re-examines its initial listing determination, taking into appropriate consideration the ESA's central purpose of promoting self-sustaining natural populations, the initial listing determination of the Upper Columbia River steelhead ESU as endangered will be in effect," the judge wrote.
The Hogan decision was appealed, by fishing and conservation groups, to the U.S. Court of Appeals for the Ninth Circuit. But in February 2004 an appellate panel ruled that it did not have jurisdiction to consider the issue because Hogan's invalidation of the coho listing and remand order did not target a "final" agency action.
"To the extent that this Court's order can be read to conflict with Alsea, perhaps this will have the happy result of instigating needed appellate review," Coughenour 's order said of the prior Hogan decision.
At least some of the litigants agree.
"What we will likely do is appeal this one and try to force the Ninth to resolve a split between two districts," said the Pacific Legal Foundation's Sonya Jones. She represents the Building Industry Association of Washington, Coalition for Idaho Water, Idaho Water Users Association and Washington State Farm Bureau - who are plaintiff intervenors - in two listings-related lawsuits heard by Coughenour. Two other lawsuits are awaiting judicial decision in Oregon's U.S. District Court and another directed at steelhead listings is being debated in Northern California U.S. District Court.
The PLF has asked the courts to invalidate the hatchery policy, but for different reasons. It says hatchery and naturally produced salmon that share the same watersheds and genes should be counted as one when assessing population status.
The defendant in the lawsuit, the federal government, is weighing its options.
"We can't comment until an analysis is done" by the Justice Department of the court orders, said NOAA's Brian Gorman.
"We've yet to hear from Judge Hogan," Gorman said of a pending decision in what some call Alsea 2. Hogan heard oral arguments in March in a lawsuit in which the Alsea Valley Alliance challenged the June 28, 2005, final NOAA listing determinations for the 16 salmon stocks in Oregon, Washington, Idaho and California.
In that lawsuit, PLF also argues that NOAA "failed, to treat equally, without distinction, all members of a salmon population that it determines constitutes a 'species' as authorized and defined by the ESA."
The plaintiffs, led by Trout Unlimited, in the cases heard by Coughenour had asked the judge to force NOAA to consider a petition that natural and hatchery stocks be considered as separate ESUs.
But the judge declined, saying the desire for distinction is "resolved by the Court's conclusion that status determinations must be made with the health and viability of natural populations as the benchmark."
"Though it scarcely seems open to debate, the Court concludes that in evaluating any policy or listing determination under the ESA, its polestar must be the viability of naturally self-sustaining populations in their naturally-occurring habitat," Coughenour wrote.
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The judge noted that NOAA employed a two-step process in determining whether the Upper Columbia steelhead ESU warranted endangered status. It employed a panel of experts from federal agencies, the Biological Review Team to assess the "the viability and extinction risk of naturally spawning populations," and it "assessed effects of hatchery programs on the extinction risk of a DPS in-total," through a workshop of federal scientists with expertise in artificial propagation, the judge said.
Both produced reports - the BRT's concluding by a slight majority of members that endangered status was warranted, and the Artificial Propagation Evaluation Workshop Report saying that "the benefits provided by the artificial propagation programs to the ESU's abundance and spatial structure could mitigate the immediacy of the ESU's extinction risks."
Coughenour said the hatchery policy mandates that "status determinations be based on the entire ESU...," which includes hatchery fish.
"The status determination for the Upper Columbia River steelhead ESU provides a clear example of how an evaluation of the entire ESU distracts from the risks faced by natural populations and departs from the central purpose of the ESA.
"Considering strictly the status of natural populations of the ESU, the BRT concluded that the endangered listing should be maintained. Then, in a separate evaluation, APEW considered the effects of artificial propagation on the entire ESU, found that hatcheries provided increases in total abundance and spatial structure, and recommended that the ESU be listed as threatened.
"If the Hatchery Listing Policy had maintained the focus on naturally self-sustaining populations found in the Interim Hatchery Policy, the BRT's analysis of the status of the natural populations in the ESU would have ended the inquiry," the judge wrote. "Because of this, both the HLP, and the Upper Columbia River steelhead ESU listing considered here, are unlawful because they are contrary to the purpose of the ESA, and must be set aside."
The fishing and conservation groups cheered the legal decision.
"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 with Earthjustice, which represents the groups. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams."
"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
The groups filing the lawsuits included Trout Unlimited, National Wildlife Federation, Pacific Coast Federation of Fishermens' Associations, Institute for Fisheries Resources, Oregon Wild, Klamath Forest Alliance, Pacific Rivers Council, Wild Steelhead Coalition, Native Fish Society and Federation of Fly Fishers. They were represented by attorneys Jan Hasselman, Kristen Boyles, and Patti Goldman of Earthjustice.