Most of you are probably aware of the decision rendered by Oregon District Judge Michael R. Hogan in the case of Alsea Valley Alliance v. Evans which will remove Endangered Species Act protections for coho in Oregon's coastal rivers. A loophole in the ESA apparently allowed the plaintiffs to claim that the National Marine Fisheries Service and the Oregon Department of Fish and Wildlife had violated the act by trying to differentiate wild and hatchery coho. Using this decision as a precedent, the Columbia-Snake River Irrigators Association has petitioned NMFS to de-list Snake River steelhead, spring-summer chinook, sockeye and fall chinook, as well as mid-Columbia steelhead and upper Columbia steelhead and spring chinook. Portland attorney James Buchal has filed a petition on behalf of the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association to do the same with Puget Sound chinook and Hood Canal summer chum. NMFS has not yet decided to appeal Hogan's decision! Call the Portland office of NMFS (503-230-5400) and ask them to do so! The ramifications of this decision are far-reaching and would undermine many of the salmon and steelhead recovery efforts that are already under way.

An appeal for wild salmon
The Oregonian Editorial
11/08/01

If the federal government lets stand a judge's ruling that blurs critical distinctions between hatchery and wild salmon,
it will undermine the basis of West Coast salmon restoration.
Tomorrow is the deadline for the National Marine Fisheries Service to appeal the Sept. 12 ruling by U.S. District
Judge Michael Hogan that stripped federal protections from coastal coho salmon in Oregon.
There's risk in taking the case to the 9th Circuit Court of Appeals -- a defeat would leave Hogan's ruling as legal
precedent throughout the range of all Pacific salmon, rather than a matter affecting only Oregon coastal coho. Yet
property-rights groups opposed to restoring rivers already are filing lawsuits against salmon recovery on other
Western rivers based on Hogan's legal reasoning. The fisheries service should stand up to them now.
Hogan ruled that the fisheries service should have taken into account hatchery-born fish when it listed wild Oregon
coastal coho salmon as threatened under the federal Endangered Species Act. The judge said it was arbitrary for the
fisheries service to recognize that hatchery and wild coho were part of the same "evolutionary significant unit" of fish,
but fail to count or extend endangered species protections to hatchery fish.
It's a narrow ruling, but already it's being eagerly exploited by those seeking to roll back federal efforts to protect
rivers and streams and restore wild fish runs. We are not wild-fish purists -- well-run hatcheries are important tools
in providing salmon runs -- but we're worried about where Hogan's ruling will lead.
If there's no distinction between hatchery and wild fish, why worry about timber sales that bury spawning gravel in
silt, why bother to maintain instream flows, why keep new developments from crowding salmon rivers and streams?
As Brian Gorman, a spokesman for NMFS said, ". . . we could literally have our rivers lined with concrete, and as
long as the hatcheries produce fish, it doesn't matter how many die along the way."
Hogan's ruling has renewed debate about hatchery and wild fish, about whether there are significant genetic
differences, whether they interbreed and whether it's wrong to club excess hatchery fish to death. Those are all
interesting arguments, but they miss the main point: The No.1 priority of salmon recovery must be restoring river
health and the natural reproduction of fish.
To do otherwise is to ignore the lessons of the past century, as one salmon run after another plunged because of
habitat loss to dams, pollution and urban development. Hatcheries have kept salmon runs and fisheries alive, but
now we spend tens of millions of dollars raising fish in concrete tanks next to rivers where they could reproduce
naturally.
Congress approved the Endangered Species Act to protect creatures and plants and the habitat they need to
naturally reproduce, not to save animals in zoos or build more fish hatcheries. The National Marine Fisheries Service
must not shrink from its duty to restore wild salmon runs in Oregon and throughout the West.


Copyright 2001 Oregon Live. All Rights Reserved.

Western Salmon Could Lose Federal Protection

By Cat Lazaroff

WASHINGTON, DC, November 12, 2001 (ENS) - A judge's ruling overturning federal protections for a single population of salmon has prompted the National Marine Fisheries Service to launch a review of at least 20 other populations, and possibly overhaul its policies toward hatchery raised salmon. Environmental groups fear the agency's decision could strip many wild salmon of protection.

The decision "could potentially affect, in addition to Oregon Coast coho salmon, 23 out of 25 listed salmon and steelhead populations on the West Coast," the agency said.

The National Marine Fisheries Service (NMFS), announced Friday that it will not appeal a September court decision which found that hatchery born salmon are biologically indistinguishable from naturally spawned wild salmon. A federal judge in Oregon reversed NMFS's action listing the Oregon Coast coho salmon as threatened under the Endangered Species Act, calling the listing "arbitrary."
The 21 page decision by Judge Michael Hogan stated that, "the NMFS listing decision creates 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."

The court ruled that the wild population should not be viewed separately from the thousands of hatchery reared coho born each year. The inclusion of hatchery fish would expand the population to the point where it would not warrant federal protection, the judge said.

Hogan's decision was applauded by property rights advocates, including the Pacific Legal Foundation (PLF), which represented the Alsea Valley Alliance in the case challenging the salmon listing.

"This ruling will go a long way in forcing NMFS to restore some level of common sense to listing species under the Endangered Species Act," said PLF attorney Russell Brooks.


)
But environmental groups warned that the ruling could set a precedent removing protection from all wild salmon populations, and urged the Bush administration to challenge the decision.
A coalition of conservation and fishing groups, led by Earthjustice, is working to overturn Judge Hogan's decision. Last month, a federal district court denied the request by the eight groups to reinstate federal protections for Oregon coast coho salmon.

On Friday, NMFS announced that it will "immediately implement actions to improve salmon protection and recovery efforts, including a comprehensive, public review of its salmon hatchery policies." The agency said it would maintain its current protections for listed salmon species, but will also review the status of about 20 salmon populations with an eye to whether hatchery bred salmon should be considered part of those protected populations.

"Recognizing the successes of local restoration efforts, we are determined to build on this momentum and bring state, local and tribal groups together to discuss salmon restoration efforts in a new and meaningful way," said Bill Hogarth, NMFS assistant administrator. "Our goal is to apply the best science and take into account public input in developing a salmon protection model that will benefit people, our environment and ensure healthy fish populations for generations to come."

Hogarth said NMFS plans to encourage local initiatives to restore salmon runs, focusing on working with public/private partnerships such as the Hatchery Scientific Review Group, Puget Sound Shared Strategy, Lower Columbia River Estuary Program and a multitude of local watershed recovery efforts throughout the Northwest and California.

"We look forward to a thorough review of our hatchery policies that addresses the court's decision in the Alsea case in a timely manner, while also ensuring that wild stocks of Pacific salmon are protected during our review," Hogarth said.


Judge Hogan ruled that NMFS can list salmon under the Endangered Species Act, and can decide which populations of the fish should be considered part of the protected population. However, once a decision is made to include hatchery fish in the protected population, all of the fish - hatchery and natural alike - must be listed or not listed together.
Earthjustice attorney Kristen Bowles said the group will continue to oppose including hatchery raised fish as part of dwindling populations of wild born fish.

"The bottom line is we are losing native salmon runs up and down the coast, and the [Endangered Species Act] recognizes that raising fish in hatcheries is no substitute for the real thing," said Boyles.

NMFS views the judge's decision as a chance to update the agency's policies with the help of new information, and with the input of local governments.

"This decision affords the Northwest region the ability to reevaluate and improve salmon protection efforts," said Bob Lohn, NMFS northwest regional administrator. "By working with local communities to strengthen existing state and federal protections and learning from the successes, including tribal programs, we can build a broad community based approach to protecting salmon and their critical ecosystems."

Besides Oregon coast coho, NMFS has listed some 20 additional salmon and steelhead populations that also have hatchery populations that are not listed. NMFS will immediately begin updating its information on these groups, and will review their status after the agency updates its policy concerning hatchery raised fish.

"We will proceed with protection and recovery activities for all listed salmon species," said Lohn. "We are committed to sustaining the partnerships that we've built to work together on conserving our salmon and steelhead and their ecosystems."

Details of the agency's actions are contained in its 'Salmon ESA Review Action Plan' available at: http://www.nwr.noaa.gov. The agency's policy review will include opportunities for public input, and is expected to be completed by September 2002.


So, does this mean no more fin clipping? Will we be allowed to keep wild and hatchery fish? Will we be allowed to fish for salmon or steelhead at all? What does this mean for state wide cnr of wild steelhead? What a can of worms!

If appeals aren't successful it could spell the end for coho nates. I just hope it doesn't set a legal precident toward steelhead and chinook native fish!!!

RT

[ 11-14-2001: Message edited by: RT i ]

RT,
As I said above, the ruling is already being used as a precedent to petition for the de-listing of chinook, steelhead and other species on the Columbia and Snake, as well as Puget Sound chinook and Hood Canal summer chum. You can expect to see plenty more. The next step is to see whether a group of conservation organizations which have asked for intervenor status will be allowed to appeal the decision. Unfortunately. Judge Hogan will be making that decision as well.

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.

Imortant read on this subject-

http://seattlep-i.nwsource.com/local/46319_salmon12.shtml

This issue is important, and I am going to need some help with it. My organization has great access to NMFS, department of commerce (the department over NMFS) and several members of the congressional fisheries sub-committee. But I need help weighing the risks of each potential route NMFS can take. We can discuss this right on the board, or I can set up a meeting with people who care to speak face to face. But we should come to a consensus on this and push one direction. This rulling has the potential to turn our whole world upside down and I don't care to sit by and wait to see what NMFS is going to do, I want to impact their decission.

Mike,

We can start right here on the board. I've invited some guys to join in that have fishing biology backgrounds and/or fishing politics understanding. I just sent the e-mails out so hopefully some will respond soon.

In the meantime can you give a brief outline here of what should be done and what us sportfishers can do to help?

RT

I am not well versed on this issue, I only know what I have read here. But, it seems that the judge is forcing people in fisheries to think outside of their tight little box. Something that every govt. employee I know doesn't and maybe can't do. My gut tells me there are some real positives here. Looks like to me he is forcing the issue of harvest restoration first then habitat. I know that most Bios that I know when asked off the record will say that the genetic strains are so blurred anymore that they may be indistinguishable.

I will think on this more...I know it flies in the face of purists but lacking the ability to appeal...what are the positives. It is very refreshing to me to be able to think outside of the box. We holler and scream at our F&W people for not doing a good job, if this changes the rules how can we get them bent in the sportsmans direction>

Mike...what is your organization?? Tell us more how you think it could help! And maybe have someone in your organization that is maybe smarter than us put together a Pro/Con list.

Hmmm....lets turn this positive I will be it can be done.


Gill

Gillraker,

My orginization is Recreational Fishing Alliance (RFA). We are a 501c4 political action orginization representing anglers. What we are not is a group of people who want to come in and tell everyone how to run their state. Rather, we would like to take the information provided form all the anglers here and push that agenda at the political level. We use grass roots backed by direct lobbying. If you have the opportunity to see a copy of "the reel news" we are the cover story this month. We started developing a chapter in the state of Washington about this time last year, and currently I represent about 700 here. Our overall membership is about 100,000 nation wide.

RT:
The first thing we have to do is figure out what NMFS is currently doing. Obviously there has been a press release put out, but I am not really that trusting of those releases to tell the whole story. I have a message out to the RFA director but Jim is in Spain this week for ICCAT meetings (International Commission for the Conservation of Atlantic Tuna) and won't be back until next Tuesday. They work with NMFS all the time and should be able to get the whole story.

The Endangered Species Act is an area I am not real strong in. I know just enough to get by. I would appreciate help from those who know it well, legally and scientifically, so we can really make an educated decission. Not knowing all the information, it looks as if the options are:

1) List all fish, hatchery and wild, as protected.
This option would seem to open up the possibility of too many fish to be endangered except in places like the Methow river in central Washington where hatchery fish are considered vital to rebuilding.

2) De-list all fish and remove any ESA obbligations
This removes some federal control, but it also removes the public perception of fish in trouble. That seem as dangerous as anything to me.

3) Break down the hatchery and wild fish into different ESU's.
This option keeps things as similar to as they are now as we can find. But even as I sit here typing, I can think about questions about wild broodstock programs and hatchery management that would need to be considered.


Once we figure out what to do, that when we start making our impact. Since this is a federal decision, the agencies have to be concerned with the opinions of all the voters not just the voters in the Pacific Northwest. I can provide the infastructure for a grass roots campaign nation wide, and then back that up with direct lobbying by either Jim or Sharon or possibly the firm we retain called Washington Stadegies (or a combination of all three).

I don't have time to get up to speed on this issue at least until midweek of next week. Does ES ratings affect tribal netting?? Again for those who are smarter than I, how can we make this positive?? How do we make it work?? Think positive instead of negative.


Gill

Mike G. - In my view, your first option is the best course of action. List both hatchery and wild stocks. The basis for the listing would be the intent of the ESA, which is to protect the ecosystem (i.e, the habitat) that supports these animals (or plants). The intent is not to produce as many animals or plants as can be created artifically. So no matter how many salmon there are in the hatcheries, there still may not be enough to justify de-listing the stock, given the intent of the ESA. So, my suggestion is for NMFS to list both hatchery and wild salmon.

But the next question becomes "Does that mean we anglers/tribes/commercial folks can't catch any salmon since both hatchery and wild fish are listed?" The answer is yes, unless NMFS issues special regulations to the States of Oregon and Washington (and the tribes) governing the taking of listed fish. This is called a 4(d) rule (from section 4(d) of the ESA). 4(d) rules authorize the taking of listed species (sort of) provided the State abides by the rules. These rules usually contain strict conservation measures to ensure affects to listed species are minimized. If NMFS did this, anglers/tribes/commercials could still fish, provided they target hatchery salmon (presumably) and abide by whatever 4(d) rules that NMFS establishes.

The catch is that 4(d) rules can only be established for threatened species or stocks. If a species/stock is listed as endangered, NMFS can't do a 4(d) rule for that stock. Therefore, fishing for that stock would not be authorized, particularly since it can't qualifiy under incidental take coverage either because fishing is not incidental take, it would qualify as direct take. But that's another story....

So, if you're looking for a position for your organization, my suggestion is to look into the pros and cons of having NMFS list both hatchery and wild salmon and then develop 4(d) rules for threatened stocks that include a hatchery componet. That would allow the ESA protections to remain in place but also allow a fishery to continue.

But most of all, don't take my word for it. Ask around. On this BB, Salmo g can probably give you an informed opinion too. Good luck.

Gill,
Yes, the ESA does effect the tribes, because its an act of congress.

Coho,
Not knowing any differently, I will assume that everything you write is true and base my concerns from your statement. Regardless of what the ESA says in its text, or does not say, there is going to be a public perception problem if we are protecting hundreds of thousands of fish, calling them all endangered, and then fishing for them. Anything could happen, including an amendment to the ESA. Thats my current opinion, subject to change. Lets see what otheres think about it.

Birdhunter posted:
"chairman of the Northwest Power Planning Council reacted favorably"

I am not trying to disrespect the chairman, but I must ask the question, Is the chairmans interests the same as ours? Is this statement a good or bad thing?


I want to encourage everyone who wishes to weigh in on this to do so, but I want to remind everyone that this is a political problem. Lets use the best science we can come up with to create our opinion, and then look at it through political eyes so see if it is likely to produce the outcome we want.

[ 11-16-2001: Message edited by: Mike Gilchrist ]

Gillraker,

You Wrote --"I know that most Bios that I know when asked off the record will say that the genetic strains are so blurred anymore that they may be indistinguishable."

With all due respect, I have to take issue with this statement. It is not supported by the literature, at least as far as NW steelhead and trout are concerned. Steelhead and trout have largely retained their genetic integrity. I've not seen anything disputing this for coho or chinook either - but I can't put my hands on those documents right now.

The "They're so interbred there's no such thing as a wild fish anymore" is a red-herring argument
designed to undercut conservation efforts.

I'm not getting down on you personally, Gill, you were told what they told you, but it is not in accord with the facts, for NW salmonids in general.

Some more interesting speculation from tidepool:

link-enhanced version of this column appears at http://www.tidepool.org/ebbtide/ebb.cfm

NO APPEAL, NOW WHAT?

ebbTIDE never expected the National Marine Fisheries Service to appeal the September 10 court ruling that resulted in dropping Oregon Coastal Coho from Endangered Species Act protections.

Trying to apply ESA listings to salmon is a political nightmare, and U.S. District Judge Michael R. Hogan's decision offered NMFS a possible opportunity to wake up. That's the cynical reason. The less cynical reason is that little would be lost in terms of protection for salmon in Oregon if the case was left to lie. On the other hand if the feds appealed the decision and lost, about 20 other listings could be thrown out by the legal precedent that would be set.

Last Friday after we went to press, NFMS announced that they would not appeal Hogan's decision and would instead launch a reevaluation of their salmon recovery policies -- possibly stripping other salmon and steelhead runs of federal protection.

Legally and politically it is the path of least risk, but still will likely mark a titanic shift in Northwest salmon policy.

As vigilant readers know, this all comes down to telling the difference between hatchery fish and wild fish swimming in the same watershed. When NMFS made the coastal coho and many other salmon and steelhead listings, they counted the hatchery fish the same as the wild fish, but they then managed the wild and hatchery fish separately -- protecting the wild fish while clubbing the hatchery salmon to keep them from competing with wild stocks for limited food and habitat resources.

Hogan's decision essentially ruled that hatchery and wild salmon are the same, while, the "cornerstone of the government's salmon-rescue blueprint ... boils down to this: the wilder, the better," the Seattle P-I reported this week.

Now it appears that "salmon rescue blueprint" will be thrown out and a new one drawn up.

With a "yearlong reexamination of the fitness of hatchery fish now underway," the question is which way will the Feds go? Integrate hatcheries into recovery? Eliminate hatchery production? Count hatchery and wild fish the same -- thus delisting more salmon stocks where hatchery fish numbers are strong?

Some -- including the Columbia River Inter Tribal Fish Commission -- are arguing that hatchery practices can be reformed to boost salmon recovery. The tribes say that hatcheries can be managed in a way that aids salmon recovery while not hurting remaining wild stocks. Inter-tribe wants to use hatchery fish as a temporary supplement to a future date when naturally spawning fish can sustain themselves. To get to that point, fish habitat needs to be repaired of course. Killing the hatchery system without fixing the salmon habitat first, doesn't make any sense.

"We ought to figure out as a scientific community in the Northwest how best to make these fish as natural as possible and integrate them with the wild populations," Inter-Tribe's Don Sampson said. "Hatcheries ought to be used for a period of time. If that is 25 to 50 years so that wild populations can sustain themselves and survive, then we ought to plan to use hatcheries to get us through this bottleneck of mortality."

Some comments from NMFS spokesfolks this week seem to indicate sympathy with the tribes' position.

There has also been support for Sampson's approach in Washington State Fish and Wildlife for years. Biologists in Washington have even called for using hatchery fish to "create" naturally spawning runs where the habitat is underutilized or unoccupied by surviving wild runs.

This week, Gov. Gary Locke and other Washington state officials "applauded" NMFS decision to take a closer look at hatcheries role in salmon recovery. Locke's advisor and Power Planning Council chairman Larry Cassidy Jr told the Vancouver Columbian this week that he sees it as a "sign the federal government may give some credit to hatchery practices that have been modified recently to more closely mimic nature."

That goes against the growing conventional wisdom among salmon-savers that hatchery fish are bad news for wild stocks. Critics of hatcheries say that the changes in hatchery practices are still experimental "tinkering" that has yet to prove out. Instead of using hatcheries to help recover wild fish, these critics have been arguing for years that hatcheries need to be closed down to give wild fish a fighting chance.

"Where we've closed down hatcheries in the past," according to Bill Bakke of the Native Fish Society. "At least in some cases, the fish population has actually increased. It's this mythology that the hatchery is the source of our fish that is the problem."

Politically, there could advantages to including hatchery fish as a part of salmon recovery. It would reduce some of the heat from property rights advocates and landowners frustrated with salmon habitat protections for fish that "wind up clubbed or caught." And, by maintaining hatchery production -- odds are you get to keep your fishing seasons -- sport, commercial and cultural. Thus ensuring the support of three strong constituencies.

Politically, hatcheries are winners. If they weren't, they would have disappeared a decade ago.

Meanwhile, counting and protecting hatchery fish together with wild fish could have a number of different results. Runs where hatchery fish are strong could lose ESA protection even if the wild fish are on the verge of extinction -- something environmentalists fear will be politically tempting for the feds.

In theory, fishermen could also lose out on catching plentiful hatchery fish if a run is weak enough to still warrant ESA listing. Fishing groups actually wanted the Feds to appeal the Hogan decision, fearing they would lose fishing rights to hatchery fish. But, I'll shave my head if that actually happens.

"Give NMFS credit. They're not stupid," Cassidy told the Columbian. "They're not doing this so they can go for more listings."

Gary,
I will honorably disagree...I will take what a bio tells me over what studies say anyday of the week. The Bios I know and trust....studies are....well...studies, done for a purpose to prove something.

Anyway doesn't matter.

I am determined to see the positive.

Gill

I have no idea how this things going to settle out. But I'm hoping that it forces the feds and states to step back and take a commonsense look at their socalled restoration efforts. I'm all for restoration but not the way they're approaching it. Examples: $600,000 for estuarine restoration that will increase wild fish about 2 to 3 dozen per year; or how about $5 mill to restore the ecosystem back to what it was 200 years ago in an estuary where there is no listed stocks? There's something definitely wrong. How about buying out property ownership if an entire town and paying to relocte them? It's in writing as part of a recovery plan! Maybe someone else neds to be in charge of how restoration is determined and funded?

Gooose

It is only though scientific study that a F&W bio could determine if hatchery fish affected the genetic integrity of wild stocks. To say that F&W bios know something that isn't published in the open literature defies the process by which they themselves derive their understanding. simple enough - the bios don't have the eyes of God