Group to appeal exclusion of hatchery salmon from ESA listing process

The Pacific Legal Foundation says it will appeal a federal court ruling it contends permits federal regulators to ignore vast numbers of hatchery fish when deciding whether biologically identical salmon are endangered or threatened.

U.S. District Judge Michael Hogan in Eugene, Ore., dismissed a PLF lawsuit Aug. 14 that challenged NOAA Fisheries’ listing of 16 Pacific salmon population segments as threatened or endangered under the Endangered Species Act.

Hogan ruled, in the absence of a challenge to NOAA Fisheries’ scientific conclusions, the ESA does not require that protective regulations treat natural populations and hatchery stocks equally. In this instance, he said NOAA Fisheries determined the population segments for listing under a permissible construction of the ESA’s definition of �species.�

PLF represents farmers, property owners, and fishing families who face stringent restrictions because of federal listing of salmon. It said it brought the lawsuit because federal officials left hatchery salmon out of the equation for determining whether salmon need special regulatory protection.

PLF has until Oct. 10 to notify the 9th U.S. Circuit Court of Appeals it will appeal the Hogan decision. Even so, it issued a statement Aug. 15 in which it promised an appeal of the case, Alsea Valley Alliance v. Conrad C. Lautenbacher. A ruling in a challenge of the ESA listing of ten steelhead trout populations is pending in U.S. District Court in Fresno, Calif.

�Federal law says that all the salmon should be counted, and all the salmon should count,� PLF Attorney Sonya Jones said of the salmon case. �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.�

Hogan is the same judge who in 2001 issued a landmark ruling in another ESA case, Alsea Valley Alliance v. Evans. In that case (Alsea I), Hogan set aside an ESA listing of wild Oregon coastal coho salmon because NOAA Fisheries failed to include biologically identical hatchery fish in the listed population. Including hatchery fish could boost total fish numbers to the point the population might no longer be considered threatened.

Rather than appeal the Alsea I decision, NOAA Fisheries eventually prepared a new hatchery policy and a final rule including listing determinations for 16 groups of West Coast salmon.

In another case, U.S. District Judge John Coughenour in Seattle issued a ruling June 13 setting aside the federal government’s hatchery listing policy as contrary to the ESA. Until such time as NOAA Fisheries promulgates another policy for considering hatchery fish in ESA listing determinations, an interim hatchery policy will be in effect, Coughenour said. The judge also said the initial listing determination of Upper Columbia River steelhead ESU as endangered would be in effect until such time as NOAA Fisheries re-examines its initial listing determination.

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