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NW Fishletter #232, June 14, 2007

[8] Federal Judge Rules NMFS Hatchery Policy Illegal

A federal judge in Seattle ruled yesterday that the NMFS policy of counting certain hatchery stocks with wild fish in evolutionarily significant units is illegal. The policy was developed a few years ago to satisfy another federal judge in Oregon.

The June 13 ruling by Judge John Coughenour also focused on the upper Columbia steelhead ESU, which the feds had judged "threatened," instead of "endangered" because of a considerable steelhead hatchery program in the watershed. That decision was questioned by conservation groups like Trout Unlimited, who charged the policy was wrong.

Property rights litigators from the Pacific Legal Foundation had taken NOAA Fisheries to court over its original policy, which the agency later modified to satisfy the successful challenge in 2001 [Alsea Valley Alliance v. NMFS] in Oregon federal court over coastal coho stocks. In that case, Judge Michael Hogan ruled that the federal agency was wrong to include hatchery stocks in the coastal coho ESU without providing them the same protection as wild stocks.

Coughenour admitted that his order could be read "to conflict with" Hogan's ruling, "perhaps this will have the happy result of instigating needed appellate review."

Environmental groups had tried to take the Hogan ruling to the Ninth Circuit, but that court ruled it was without jurisdiction to hear the appeal on its merits because the remand order was not final.

The PLF argued for plaintiff-intervenors in the Seattle case, which included the Building Industry Association of Washington, two groups of Idaho water users and the Washington Farm Bureau, claiming that that the new policy still allows NMFS to make distinctions between hatchery and wild salmon that are not allowable under the ESA. Coughenour denied their motion for summary judgment.

But in the latest ruling, Judge Coughenour cited "important differences between hatchery and wild fish, and said that status determinations of listed stocks must be made "with the health and viability of natural populations as the benchmark."

He also ruled that the upper Columbia steelhead should be classified as "endangered," rather than threatened, because there was nothing in the administrative record that "provides a scientific justification for basing status determinations on the entire ESU, and that to do so, is, in fact, contrary to the best scientific evidence available."

Plaintiff environmental and fishing groups argued that many of the federal agency's own experts had argued that the policy was not biologically defensible. "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, Earthjustice attorney in a press release after the decision was announced. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams."

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.

NMFS spokesman Brian Gorman told NW Fishletter that his agency hasn't yet done an analysis of the rulings, but he said the judge has ordered the agency to implement its "interim hatchery policy" which was in place before the final policy was adopted.

After the Hogan decision in 2001, NOAA Fisheries and the U.S. Fish and Wildlife Service developed a final policy after months of internal wrangling over hatchery issues. Insiders say that NMFS was arguing for a more stringent policy, while USFWS policymakers supported a more flexible position to ensure the continuation of that agency's large hatchery program, which includes steelhead production.

Sonya Jones of the Pacific Legal Foundation told the Spokesman-Review that Coughenour's rulings were in direct conflict with Hogan's and ripe for appeal. The PLF has another case pending in Hogan's court over hatchery issues as well, arguing that the NMFS hatchery policy and latest ESA listings are illegal because the agency can't count hatchery fish with wild stocks and still relist the distinct populations just because they say habitat conditions aren't good enough to support the naturally spawned species in its natural environment. -B. R.

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