This is a moot point. NMFS has elected not to appeal but they have also decided to undertake a complete examination of their hatchery policy, all their listing decisions, and the implications of the judge's ruling. So, even if there is an appeal, it would not change the fact that NMFS will be reviewing all their listing decisions. In fact, if the conservation groups appeal to the Ninth Circuit and lose, all the ESA protections for salmon would no longer be in effect. Given NMFS's proposed actions, an appeal at this point might do more harm than good.

It's important to recogize that the judge did not rule that hatchery fish and wild fish are the same. He ruled that the ESA does not legally allow NMFS to differeniate stocks any finer than an Evolutionary Significant Unit. In this case, the Oregon Coastal coho. Most folks would agree there are differences between hatchery and wild salmon but the ESA doesn't provide the authority to seperate them. I'll bet that in the end, NMFS will list both hatchery and wild salmon and then provide for the taking of hatchery fish thru special regs (a 4(d) rule for the ESA buffs).

I'm more optimistic about this ruling now than I was when it first came out. It will be important for anglers to participate in the listing/hatchery review that NMFS will be undertaking. Our fishing future will be affected by the outcome.