[4] Niners Nix Challenge To Feds' Hatchery Policy

The 9th U.S. Circuit Court of Appeals has upheld a NOAA Fisheries hatchery policy after a federal district court ruled nearly two years ago that it violated the ESA.

In 2007, environmental groups were successful in Western District Court of Washington, where Judge John Coughenour ruled that the federal fish agency violated the ESA when it lumped hatchery steelhead in with wild fish when considering the ESU [Evolutionarily Significant Unit] for upper Columbia steelhead. He also agreed with the groups' position that the feds were wrong to downgrade the steelhead ESU's status from endangered to threatened.

But in an appeal by the feds, the Niners' panel reversed the district court's ruling, and said the district court should grant NMFS' motion for summary judgment.

The three-judge panel said NOAA deserved deference, and that its judgments were reasonable.

"The record shows that NMFS approached the listing decision in a thoughtful, comprehensive manner that balanced the agency's concerns and goals," they said.

The ruling also likely ended a 10-year challenge from the Pacific Legal Foundation that said the agency must not distinguish between hatchery stocks and wild fish when both are included in the same ESU.

Arguing as interveners in this appeal, the PLF and fellow intervenor Building Industry Association of Washington said the feds couldn't single out the wild component for protection. It's been their position since 2001, when they won a ruling in the Alsea Valley v. NMFS decision regarding Oregon coastal coho, which said that NMFS must include both the hatchery and wild components in a listing, since both were in the same ESU.

Rather than appeal, NMFS revised its policy to accommodate the ruling by including hatchery stocks, but still placing most importance on maintaining the viability of the wild fish.

"Nothing in the text or legislative history of the ESA requires equal treatment for members of the same ESU," the appeals court said in its latest decision. The court also said NMFS has the discretionary authority to decide which hatchery stocks are helpful or harmful to the natural fish. -B. R.

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