NMFS Releases Anti-Hatchery, Anti-Law Policy

by James Buchal
Buchal.com

Posted 8/29/02

The National Marine Fisheries Service (NMFS) recently released its draft policy on how to treat hatchery fish when administering the Endangered Species Act.  Hatchery fish are a problem for the agency, because if one takes account of hatchery fish in assessing extinction risk, there are no endangered salmon in the Pacific Northwest.  Hatchery populations aren't about to go extinct, even with bad hatchery management.  

Many Northwesterners suffering under the dead hand of federal land management took heart almost a year ago when U.S. District Judge Hogan told NMFS its anti-hatchery discrimination was unlawful.  But the Regional Administrator of NMFS, Robert Lohn, has now put forth a bold response:  NMFS will not merely ignore Judge Hogan's decision, but also declare that the ESA requires anti-hatchery discrimination.  

This is an astounding lie, because Congress spelled out the purpose of the Endangered Species Act in its first section: 

"The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of [certain international] treaties and conventions . . ."  (16 USC 1531(b) (emphasis added).)

I emphasize the word "conservation" because the Act says that growing hatchery fish is conserving salmon.  The statutory definition of "conserve", "conserving," and "conservation" is:

"all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resource management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation . . ." (16 USC 1532(3) (emphasis added).)

The critical question resolved by the new policy is how to treat hatchery fish in assessing whether or not salmon are endangered or threatened within the meaning of the Endangered Species Act; that is, whether they are in danger of disappearing.  Mr. Lohn says the ESA does not give "specific guidance on how the presence of captive or artificially propagated populations might influence a listing determination".

But Congress said that NMFS must 

"determine whether any species is an endangered species or a threatened species because of any of the following factors:

"(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

"(B) overutilization for commercial, recreational, scientific, or educational purposes;

"(C) disease or predation;

"(D) the inadequacy of existing regulatory mechanisms;

"(E) other natural or manmade factors affecting its continued existence." (16 USC 1533(a)(1))

If NMFS followed this law, and considered all these five factors, there would be no salmon listings to build the Salmon Recovery Empire.  Mr. Lohn offers reasons to avoid that result.  According to him:

"Artificial propagation cannot serve as a substitute for the protective efforts necessary to address other factors for decline limiting a [salmon species] such as habitat degradation, overutilization, disease or predation, inadequate regulatory mechanisms, or other natural or manmade factors . . ."

In other words, Mr. Lohn has announced that NMFS will refuse to obey the law.  Rather than balance all the factors required by Congress, including hatchery operations, to assess extinction risk, Mr. Lohn says NMFS must "address" all the "factors for decline", apparently without regard to whether there are any genuinely endangered species at all.  Mr. Lohn emphasizes that there is no way that "a strong hatchery population would, by itself, be a reason to decide that listing is not warranted".  

As a practical matter, this amounts to a claim that the Federal government has to take over  management of all natural resources in the Pacific Northwest to save ecosystems, whether or not there is any risk that any particular species of salmon is about to disappear from the face of the earth.  Like most modern federal bureaucrats, Mr. Lohn does not understand his role as implementing law, but rather as exercising a limitless mandate to pursue his peculiar conceptions of the public interest.

Worst of all, Mr. Lohn argues that his interpretation of the Endangered Species Act is compelled by law.  Since the language of the statute does not support his position, Mr. Lohn quotes (among others) the lightweight son of the heavyweight champion, former Democratic Senator Tunney of California, complaining about "unsuitable environments for natural populations of fish and wildlife".  According to Mr. Lohn, "NMFS understands the goal of the ESA to be the preservation of self-sustaining naturally-reproducing populations in their natural habitats".  What this means in practical terms is that so long as one single salmon hatchery is still running, our government "scientists" will never be able to tell whether "wild" salmon populations are "self-sustaining", so that they must remain listed forever.  

By the end of his extraordinary policy, Mr. Lohn flatly declares that the ESA "require[s] the preservation of self-sustaining species in their natural ecosystems", which is obvious nonsense.  The Act forbids things such as federal actions that "jeopardize the continued existence of listed species" (unless an exemption is obtained in the public interest), but it does not require "the preservation of self-sustaining species in their natural ecosystems".  How could it, when the Act requires federal agencies to carry out "programs for the conservation of endangered species and threatened species", and includes artificial propagation within the definition of "conservation"?

What Congress wanted, and what Northwesterners still want, is the "scientific resource management" promised in the Act.  It is easy to understand why the Greens, for whom the highest virtue is keeping humans off the land (other than themselves), would insist that scientific management means "hands off Nature".  (This, of course, is the "scientific resource management" burning our forests to the ground this summer.)  What is harder to understand is why a Bush appointee like Mr. Lohn chooses Green worship over scientific resource management and obedience to law.  Rumor has it that one reason the policy is so bad because Mr. Lohn's secretary sent it out to environmentalist groups before it was released to the public (probably standard practice under the Clinton/Gore Administration), and those groups then met with Mr. Lohn, who changed the policy in response to their objections.   

As far as I can tell, the bottom line remains the same.  It's going to take a Revolution to put common sense back into government, and Mr. Lohn is an Enemy of the Revolution.  If President Bush had the slightest will to "dance with them that brung him" into office, he'd fire Mr. Lohn forthwith.  That's what Leftists like Oregon's Governor Kitzhaber do, and that's why the Leftists are winning.  (Governor Kitzhaber has just summarily sacked Oregon's representative to the Northwest Power Planning Council for daring to challenge Green orthodoxy.)

© James Buchal, August 6, 2002

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