Ruling ripples through salmon country
by Rebecca Clarren
Fisheries Service must rethink hatchery policy
When Robin Waples, a scientist for the National Marine Fisheries Service, spent the early '90s defining what constitutes populations of salmon and steelhead, he never imagined that his work would become the basis for a passionate debate. After all, his research speaks a language of "evolutionary lineages" and "distinct population segments" - not exactly sexy stuff.
But Waples' work was central to the federal government's approach to a sticky issue: What is the difference between hatchery and wild stocks of the same fish population? Based on Waples' research, the Service determined that though some hatchery-bred fish should be classified as the same population group as wild species, they should not be part of the government's program for recovering wild stocks.
"The approach we developed involved a lot of common sense," says Waples. "Listing the hatchery fish wouldn't benefit wild stocks; it would just create a lot of red tape and a huge regulatory burden for anyone who wanted to do anything involving hatchery fish. Our lawyers thought we had discretion to do this under the Endangered Species Act."
Their lawyers were wrong, according to one federal judge. In September, District Judge Michael R. Hogan found that it's illegal for the Service to designate hatchery and wild fish as the same populations of a species, but then extend protection only to wild stocks (HCN, 10/8/01: Coho salmon lose federal protection).
Hogan's ruling immediately removed the Oregon coastal coho from protection under the Endangered Species Act, setting off a cascade of activity in the fish's habitat, which ranges from the Pacific Ocean up into the Columbia River Basin. As many as 12 federal timber sales, postponed due to the coho's protected status, are now being logged, and up to 40 additional sales are pending. Also, landowners in that region can now build roads and fix culverts without having to consider how they will affect salmon.
Emboldened property-rights groups and water users see Hogan's decision as a wedge that could force the government to remove protection for salmon and steelhead, from Northern California's Klamath Basin to eastern Washington's Columbia River Valley. Already, various groups have flooded the feds with six petitions to delist 16 of 25 species of threatened or endangered salmon and steelhead. The National Marine Fisheries Service, which on Nov. 9 decided not to appeal Hogan's decision, is in the hot seat. The agency now has a year to re-evaluate its hatchery policy for all listed Pacific Northwest fish.
While the nonprofit law firm Earthjustice is appealing Judge Hogan's ruling to the 9th Circuit Court of Appeals on behalf of eight conservation and fishing groups, it may take a year for the court to rule.
"All Hogan did was light the fuse," says Jim Lichatowich, a fisheries scientist and author of the 1999 book, Salmon Without Rivers: A History of the Pacific Salmon Crisis. "Now it's up to NMFS to decide just how big of a bang this will be in response."
An agency under pressure"It's going to be a bit of a challenge," says Brian Gorman, a Fisheries Service spokesman. "We have to wrestle with the issue of how to manage naturally spawning and hatchery stocks that exist in the same area."
Currently, most hatchery and wild fish aren't handled the same way. While in many cases wild fish must be left alone, fishermen are encouraged to keep hatchery fish that are marked with a clipped fin. While wild fish are left to die in the rivers after spawning, as part of the natural cycle, state fisheries often catch and gut hatchery-bred salmon and steelhead before they spawn, collecting eggs for the next generation of hatchery fish (HCN, 3/26/01: The tale of a salmon slinger).
The NMFS plans to have a rough draft of a new policy by February 2002. Then the Service will begin to collect public comment and hold hearings before devising a final plan that applies to all listed species of salmon and steelhead, due out the following September.
While the Service says it's too soon to predict what the new hatchery policy will mean for endangered fish, many people are eager to speculate.
"If they include hatchery fish numbers, they won't need to list them in the first place," says Vivian Henderson of the Kitsap Alliance of Property Owners. Her group believes that combining hatchery and wild fish numbers will indicate a thriving fish population that doesn't warrant federal protection. The Kitsap Alliance has filed a joint petition with the Skagit County Cattlemen's Association to delist Washington's Puget Sound chinook and summer chum. The delisting would make life easier for people living near salmon habitat, says Henderson. "We don't want the heavy hand of the federal government regulating land use."
Others say NMFS has several options other than simply delisting. The agency could offer hatchery and wild fish equal protection, it could distinguish hatchery and wild fish as distinct species, or "there may be a way for them to split the baby in half," says Louise Solliday, Oregon Gov. John Kitzhaber's assistant for natural resources. "It's likely that they'll include hatchery fish in the listing of wild fish with some characterization, that when hatchery fish aren't critical to species recovery, they may allow a take." That would mean business could continue as usual.
Salmon advocate Ed Chaney says it's not in the agency's best interest to stop protecting fish. Delisting species would dry up the billions of federal dollars the fisheries service receives to recover salmon.
Furthermore, the Endangered Species Act requires the federal government to restore species in their natural habitat; just including hatchery numbers with wild fish doesn't mean that watersheds are healthy, says Glen Spain of the Pacific Coast Federation of Fishermen's Associations. That's why, Spain says, conservation groups can sue the federal government if it delists the fish.
"The ESA was not designed to protect concrete vats full of hatchery fish," he says. "The best available science says there is a real difference between hatchery and wild fish, and these listings for wild stocks will not go away."
A learning experienceFor many salmon advocates, the most troubling aspect of Judge Hogan's decision is that it moves the hatchery-vs.-wild fish debate into the political and legal arena. Scientists warn there's a danger in that: "Legislators aren't as restrained by the facts," says fish scientist Lichatowich. "They can always find somebody who will support what they want to do and hold it up as science."
Now it's up to the NMFS to decide whether to respond in a scientific or a political way. It will be the first big endangered salmon test for the Bush administration and its newly appointed director of the agency, Bob Lawn.
"Whatever way they go will tell us a lot about how they lean in salmon issues," says Lichatowich.
For the immediate future, salmon management is treading uncertain ground, especially in Oregon, where Gov. Kitzhaber has taken an aggressive approach to restoring salmon habitat. Earthjustice has asked the 9th Circuit Court to relist the coho until the court makes a final decision on the case.
But for now, private landowners in Oregon who are interested in watershed restoration are uncertain whether to invest money in restoration efforts, says Solliday, since upstream federal timber sales could devastate those efforts.
In the longer term, conservationists throughout the region worry that a string of delistings could spell the end of hopes to remove four dams on the Snake River and to use federal money to recover degraded watersheds throughout the Pacific Northwest.
"For many of us who use the ESA as the primary tool to motivate policy change, this huge degree of uncertainty has thrown a big hole in our strategy," says Mary Skurlock of Pacific Rivers Council. "It's basically a big annoying nightmare."
Rebecca Clarren is HCN's associate editor.
YOU CAN CONTACT ...
- Robin Waples, National Marine
Fisheries Service, 206/860-3254;
- Pacific Rivers Council at 503/283-1395.