Hatchery decision likely headed for the courts

The Bush administration's move last week to finalize a controversial policy to protect many hatchery-raised salmon alongside wild salmon under the Endangered Species Act means the struggle over the fish's future will likely move to the federal courts as environmentalists and property rights advocates prepare challenges to the decision.

The Pacific Legal Foundation has already given notice that the groups it represents -- including builders, realtors, farmers and foresters -- will file a lawsuit arguing that the Endangered Species Act requires the National Marine Fisheries Service to treat hatchery salmon the same as wild, naturally spawning salmon (Greenwire, Nov. 17, 2004). Environmentalists, meanwhile, are considering suing NMFS over the decision because it ignores research demonstrating that hatchery salmon are threatening the recovery of wild salmon.

But NMFS stands behind its new policy, arguing that it considers threats that hatchery salmon sometimes pose to wild salmon, as well as the benefits of hatchery-raised fish. "This policy reinforces our commitment to protect naturally spawning salmon and their ecosystem," said Conrad Lautenbacher, head of the National Oceanic and Atmospheric Administration, which oversees NMFS, in a statement at last week's release of the final policy. "A properly managed hatchery program can provide a great boost to natural populations of fish."

The new policy allows NMFS to count hatchery-bred fish along with wild-spawning salmon when considering whether to protect the fish.

Property rights advocates believe the policy does not go far enough to delist salmon stocks, saying the abundance of hatchery salmon should allow the removal of many West Coast salmon stocks from the Endangered Species List.

"Federal regulators are playing a shell game," said Russ Brooks, an attorney with the Pacific Legal Foundation. "No provision of the ESA contemplates treating some members of a species differently than other members of the same population when they exist in the same river, in the same natural ecosystems, and interbreed together."

But environmentalists and fishers have likened the policy to boosting wild wolf populations by counting wolves in zoos as part of the overall wolf population (Land Letter, May 13, 2004). Furthermore, they note that salmon managers have tried to use hatcheries to boost salmon populations for years without success.

"We've been trying to save salmon with hatcheries for the past 50 years. It never worked before and it won't work now," said David Bayles, executive director of the Pacific Rivers Council, arguing that habitat restoration is the proven way to recover salmon.

Changes on the ground

None of the 26 stocks of Pacific salmon listed under the Endangered Species Act -- about half of the salmon stocks on the West Coast -- have yet been removed from the list under the new policy. In fact, when reviewing Pacific salmon stocks, the agency decided that one more should be added to the list, lower Columbia River coho salmon in western Oregon and Washington. In addition, the central California coast coho was upgraded from threatened to endangered.

But NMFS is delaying a decision for another six months on 10 of the stocks, namely Oregon coast coho salmon and nine stocks of steelhead.

For the steelhead, NMFS is analyzing whether they differ enough from rainbow trout to be considered separate populations. Steelhead are often genetically indistinguishable from rainbow trout and differ only in that steelhead are anadromous, meaning they migrate out to the ocean and back, and trout are not. The agency is also examining who has jurisdiction over the steelhead, since NMFS deals with anadromous species and the Fish and Wildlife Species handles fish that remain in freshwater streams and rivers.

For Oregon coast coho, NMFS is trying to determine whether the state of Oregon is correct in its position that coho have been returning in higher and higher numbers over the years and therefore warrant delisting, according to agency spokesman Brian Gorman.

Changes on the books

While the new policy has not resulted in any changes so far in terms of how the fish are managed, it does represent a significant change from how NMFS treated hatchery salmon in the past.

The Endangered Species Act allows NMFS and FWS to break down animal groups into three basic categories: species, subspecies and a distinct population segment (DPS). Because Pacific salmon are so different from other wildlife, NMFS has a unique policy for salmon that defines a DPS as an "evolutionary significant unit," also known as an ESU or stock. An ESU is a group of one or more salmon populations that share similar characteristics and differ in important ways from groups of salmon in neighboring areas.

NMFS has traditionally included both hatchery and wild fish in an ESU, but then only considered the wild fish for listing under the Endangered Species Act. But Judge Michael Hogan of U.S. District Court in Oregon ruled in 2001 that every fish included in the ESU must be considered for listing. So, if both hatchery and wild fish are included in an ESU, NMFS must consider both hatchery and wild fish when deciding whether to list the stock.

NMFS decided not to appeal the Hogan ruling, which legally applied only to Oregon coastal coho, and instead opted to overhaul the hatchery policy for all West Coast salmon and steelhead to conform with Hogan's reasoning (Land Letter, Nov. 11, 2004).

Before the ruling, NMFS simply assumed that all hatcheries had a negative effect on wild populations. Now, that is no longer assumed. Under the new policy, NMFS has analyzed every single salmon and steelhead hatchery throughout the West Coast and looked at both the positive and negative effects each hatchery has on native populations, according to Garth Griffin of the agency's Portland, Ore., office.

Many stakeholders expected that such an analysis would lead to delistings simply because the number of hatchery salmon boosts the number of salmon overall and makes the population appear more abundant.

But abundance is only one criterion NMFS considers when determining whether to list a stock. Since the early 1990s, NMFS has looked at not only abundance, but also productivity, diversity in the gene pool and spatial structure of the stock, or how spread out it is.

Hatcheries sometimes have negative effects on these other criteria. They can shrink the gene pool, and since hatchery fish nearly all spawn in the hatchery, they limit the spatial structure of the population. And in some cases, certain hatcheries produce fish that are genetically divergent enough that they are not included in the ESU at all.

So the listings remained largely unchanged. And even where NMFS has included both hatchery salmon and wild salmon in the same ESU, the agency is only granting the protection of the ESA to the wild stocks. Fishers can still fish for and keep hatchery salmon.

How hatchery reform fits in

Although fishers and environmentalists had pushed NMFS not to consider hatchery-raised fish in listing salmon stocks, the groups are also working to ensure that hatchery salmon are as closely related to wild salmon as possible. Trout Unlimited and other groups want region-wide hatchery reform that would include stocking hatcheries with wild salmon from the river where the hatchery is located so as not to introduce different genes into the local ecosystem. Reform efforts also aim to make sure hatcheries are not producing so many salmon that they overcrowd the capacity of the local stream and potentially outcompete wild stocks.

Under the new policy, these reforms might result in more and more hatchery fish being included in an ESU group because hatcheries with minimal effects on wild salmon can be counted as boosting populations.

Environmentalists and fishers are not the only ones pushing for hatchery reform. Last week, the Northwest Power and Conservation Council released a number of recommendations to Congress for reforming fish hatcheries in the Columbia River Basin. Among other things, the council recommended that managers establish long-term objectives for hatchery and wild salmon and ensure that hatcheries are making progress toward those objectives.

"Our recommendations will serve as the basis for prioritizing changes in hatchery operations to reduce disease, improve the fitness and genetics of artificially produced fish, and improve their compatibility with fish that spawn in the wild," said the council's chairwoman, Melinda Eden of Oregon.

The eight-member council -- established under the Northwest Power Act of 1980 -- includes two representatives appointed from the governors of each of the Columbia River Basin states.

Lawsuit filed over Leavenworth hatchery

The controversy over hatcheries is not limited to the fish they create either. The operations of the hatcheries have also faced criticism.

Most recently, a group of fishers and environmentalists in Washington state called Washington Trout filed suit against the Fish and Wildlife Service to force the agency to remove fish-passage barriers at the FWS-operated Leavenworth National Fish Hatchery on 20 miles of Icicle Creek, a tributary of the Wenatchee River. Washington Trout said FWS has illegally blocked wild steelhead and bull trout, both listed under ESA, from entering the creek, trapped some ESA-listed fish in part of the creek and stranded others by diverting most of the water out of other parts of the creek.

FWS maintains that the blockage is temporary and is needed to collect returning hatchery salmon and keep them from entering wild spawning habitat in the creek.

But Washington Trout says that under ESA, FWS must obtain a permit for such activities because it results in harm to a federally protected species.

Northwest reporter Natalie M. Henry is based in Portland, Ore.