[4] Property Rights Group To Appeal Two ESA/Hatchery Fish Rulings

The Pacific Legal Foundation has announced that it will appeal a recent ruling [Trout Unlimited v. Lohn] in U.S. District Court in Seattle that tossed out the current NMFS policy allowing some hatchery fish to be counted when making ESA listing decisions. Then, just two days ago, another ruling on hatcheries was announced in Oregon District Court that the PLF said it will also take to the Ninth Circuit Court.

Federal Judge James Coughenour admitted his decision conflicts with an earlier decision [Alsea Valley Alliance v. NMFS] by the U.S. District Court in Oregon that led to a change in agency policy that counted some hatchery fish if they were close enough to the wild component of the stock in question.

PLF attorney Sonya Jones said her group will go to the 9th U.S. Circuit Court of Appeals, arguing that the Seattle decision discounts the value of hatchery fish and forces regulators to ignore them when determining if stocks should be listed for ESA protection.

Jones told NW Fishletter that PLF is prepared to go all the way to the Supreme Court if the Niners turn down their appeal.

In the litigation, the PLF is representing the Building Industry Association of Washington, Washington Farm Bureau, Coalition for Idaho Water, and Idaho Water Users Association.

On Aug. 14, Oregon District Court Judge Michael Hogan delivered another blow to PLF challenges to federal hatchery policy when he ruled that it was perfectly legal for the government to use different standards for deciding whether hatchery and wild salmon should be listed for ESA protection. Hogan dismissed a PLF lawsuit [Alsea Valley Alliance v. Lautenbacher] that challenged all 16 ESA listings of West Coast salmon because federal officials have been leaving hatchery salmon out of the equation for determining whether salmon need special regulatory protection.

"Federal law says that all the salmon should be counted, and all the salmon should count," said Pacific Legal Foundation attorney Sonya Jones. "Regulators do not have license to pick and choose which salmon they'll pay attention to and which ones they'll ignore. For this reason, the case is not over. We're appealing, so that the federal officials will be required to do their job under the ESA."

Environmental attorneys said Hogan's latest ruling is consistent with the earlier ruling from Coughenour's courtroom. "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 Earthjustice attorney Jan Hasselman. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams," said Hasselman.

The groups intervening on the government's side were 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. -B. R.

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