Ruling could open fight over salmon

By Jeff Barnard

Associated Press

GRANTS PASS, Ore. – A ruling that threw out a regulation that protected coho salmon spawned in the Oregon wild but not those raised in hatcheries has opened a crack in a pillar of the policies to save Pacific salmon from extinction: that wild fish are better than those raised in hatcheries.

Plaintiffs in the lawsuit and Indian tribes hope that crack can be opened to a new era in which hatchery fish supplement declining runs of wild salmon so they can be harvested.

But environmentalists intend to close the crack so that restoration efforts continue to concentrate on rebuilding native fish runs and restoring habitat.

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U.S. District Judge Michael Hogan in Eugene found that the National Marine Fisheries Service was arbitrary and capricious when it included hatchery fish in the same group as the wild fish, but did not extend them the protection of the Endangered Species Act.

The immediate impact is limited: Coho salmon in coastal rivers from the Columbia River south to Cape Blanco – about two-thirds of the Oregon coast – are no longer protected by the Endangered Species Act. That means it is no longer a federal crime to kill or harm them or their habitat.

Depending on the course of future litigation, the ripples could spread across the West, because at the heart of all but a few of the 25 other listings of Pacific salmon and steelhead is a distinction that protects wild fish, but does not protect their hatchery cousins marked by a clipped fin.

State protections of fish and habitat remain in force, but new lawsuits making the same arguments could be brought individually against other listings, said Russ Brooks, the attorney representing the plaintiffs, the Alsea Valley Alliance, a coalition of local sport fishing interests.

“You can go to a restaurant and order it up on a plate,” Brooks said. “If they’re threatened, fine, list them all, not just part of them.”

Until this ruling, the fisheries service has operated on the scientific point of view that after decades of poor hatchery practices, wild fish are genetically more diverse and behaviorally more suited to survive than their hatchery cousins.

“This could be picking out the pebble that makes the whole edifice fall,” said Bill Bakke of the Native Fish Society, a conservation group.

The Bush administration could decide not to appeal the ruling, as it did not appeal a ruling overturning the Clinton administration’s protection for millions of acres of roadless areas on national forests, and just where the fisheries service will go as it reconsiders protection for Oregon coastal coho is unclear.

The agency could drop the Oregon coastal coho listing altogether, include hatchery fish in Endangered Species Act protection, drop hatchery fish from the group known as an evolutionarily significant unit, or extend any new decision to other listed salmon and steelhead.

Patti Goldman, an attorney with Earthjustice, an environmental public interest law firm, said the ruling changes the ground rules, but the fisheries service should have no choice but to restore the listing when it follows the judge’s order to make its decision based on the best science.

If the Bush administration chooses not to appeal, environmentalists could intervene to bring their own appeal, as long as their position is different from the government’s, she added.

Indian tribes are hoping the ruling signals a new era of restoring declining salmon runs by judicious use of hatcheries to supplement declining runs so they can be harvested for commercial, ceremonial and subsistence use. They argue that some listed salmon, such as those in the Methow Valley in Central Washington, are all descended from hatchery stocks anyway.

“This is something the tribes have been fighting for years,” said Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission. “They were talking about 90 years before reaching recovery on some of these stocks. There is a certain amount of madness.”