By Mike Lee
Herald staff writer
Tri-City Herald - Pasco, WA
from http://www.tri-cityherald.com/news/2001/0927/story2.html
Pasco, WA - 9/27/01 - Some of the Pacific Northwest's
threatened and endangered salmon species may not necessarily
warrant federal protection if a recent court ruling in Oregon
holds water.
That could loosen salmon protection rules across the region
-- but it may not bring wild salmon runs any closer to health.
In a Sept. 10 decision, U.S. District Court Judge Michael
Hogan removed Oregon coastal coho from the Endangered Species
Act list. The ruling said that's because the federal
government did not account for hatchery coho when deciding the
wild run needed strict federal protection.
That has broad implications up and down the West Coast,
where 25 of 26 threatened and endangered fish populations have
related hatchery stocks. The National Marine Fisheries Service
has interpreted its job as recovery of "natural
populations" of fish.
"I would not
be surprised if you see copycat lawsuits to get at other
listings," said Jan Hasselman, staff attorney at the
National Wildlife Federation in Seattle, who promised a
challenge to the ruling.
The suit was filed
by the Pacific Legal Foundation, challenging the systematic
destruction of hatchery salmon on the Alsea River in Oregon.
"It's ironic.
Now that the court has decided that NMFS must count hatchery
coho in determining whether coho are indeed threatened, there
are no more hatchery coho in the Alsea River basin left to
count," said Russell C. Brooks, foundation lawyer.
"If these fish are listed now, it will be only because
government workers slaughtered them by the thousands."
NMFS created "the unusual circumstance of two
genetically identical coho salmon swimming side by side in the
same stream, but only one receives ESA protection while the
other does not," Hogan said in a written decision that
was muted by East Coast terrorist attacks the next day.
"The distinction is arbitrary," the judge added.
The distinction is questioned by people who are being told
to make sometimes drastic changes to water and land use for
the sake of fish at a time when more than 1.7 million mostly
hatchery salmon and steelhead have returned to Bonneville Dam
this year.
For those who feel oppressed by NMFS' salmon management
tactics, Hogan's ruling is some of the best news in years.
Oregon's coastal coho have no ESA protections, though state
rules and federal harvest rules still apply. "The hated
4(d) rule has evaporated (for coastal coho)," said NMFS
spokesman Brian Gorman, referring to land use regulations that
sparked the ire of farmers across Eastern Washington.
"It's a positive move in our direction ... the
direction of irrigated agriculture," said Chuck Garner,
manager of the Kennewick Irrigation District. The district
this summer suffered severe water shortages largely because of
federal demands that more water be left in the Yakima River
for fish. "It could be quite a precedent," Garner
said.
A similar but much broader lawsuit was filed two years ago
in federal district court in Washington, D.C., by farmers,
real estate agents, builders and ranchers in Washington state.
It argued there's no biological basis for distinguishing
between hatchery and wild stocks, especially since Congress
specifically required hatcheries be used to augment wild runs.
With Hogan's ruling in hand, those interest groups hope the
Washington, D.C., court will follow suit and that NMFS will
remove some species from the ESA list based on large
quantities of hatchery fish.
"The (Hogan) decision will mean there is a greater
role for hatchery fish in recovery and also there may very
well be some listings out there that if you consider the
number of hatchery fish, the fish themselves are no longer in
danger of extinction," said Dean Boyer, spokesman for the
Washington State Farm Bureau.
NMFS has until early November to appeal Hogan's ruling.
That decision will be one of the first real tests for incoming
regional administrator Bob Lohn.
"We might prefer to deal with the issue in a
policy-administrative way that would satisfy any likely court
challenge," said Gorman, who did not rule out an appeal.
But NMFS' job is much larger than reconsidering its
approach on the Alsea River. The agency likely will need to
address hatchery policy across the board -- a policy that
already was faulted for inconsistency before Hogan's ruling.
Conservation groups are lining up to prepare their own
appeal if NMFS fails to make one.
Hasselman, the environmental lawyer, said Hogan's view of
the ESA was too narrow and that it's not clear that Oregon's
coastal coho would avoid federal protections even if hatchery
fish were counted.
But he's most concerned about the intent of legal
challenges trying to roll back the ESA. "Forcing
delisting through this kind of approach is not going to solve
the underlying issues here," he said.
"Efforts like this are comparable to pulling batteries
out of the fire alarm," Hasselman said. "You don't
have that annoying beep, but you still have the fire."
On the Net: For the complete text of Hogan's
ruling, go to www.tri-cityherald.com/documents/